Alfred Henry Lionel Leach, C.J.
1. The appellants are the mokhasadars of a village falling within the jurisdiction of the Subordinate Judge of Masulipatam. On the 7th October, 1920, they sold to the first respondent the kudivaram right in their kambattam, or home farm lands, on; conditions to which I shall refer in some detail presently. On the 31st March, 1934, the appellants filed a suit in the Court of the Subordinate Judge of Masulipatam for the recovery of the rent due by the sale of the lands. It was contended by the respondents that by the deed of the 7th October, 1920, the, appellants had converted the lands from kambattam into ryoti lands and consequently the Revenue Court, not the Civil Court, had jurisdiction. Before the Subordinate Judge the appellants admitted that the village was an 'estate' within the meaning of the Madras Estates Land Act, 1908, as amended in 1936, but they averred that the village was not an estate within the meaning of the Act as it stood at the time of the contract with the first respondent, and an issue was framed on the question. It is, however, impossible for the appellants to maintain this contention. By admitting that the lands in suit are kambattam lands within a mokhasa village, it follows that the village was an 'estate' within the meaning of the Madras Estates, Land Act, even before the amendment in 1936, and the appeal must proceed on this basis. The Subordinate Judge upheld the respondents' contention that there had been a conversion and dismissed the suit. On appeal to this Court, Wadsworth, J., concurred in these decisions and this appeal is from his judgment.
2. Section 181 of the Madras Estates Land Act before the amendment of the Act stated that nothing in Sections 6, 8, 10, 11, 12, 19 and 46 should confer a right of occupancy in, or should apply in any way to, a landholder's private land. Then followed a proviso to the effect that nothing contained in the section should prevent a landholder from converting his private land into ryoti land. Until private land was converted into ryoti land the landholder could deal with it as he liked and that is still the position, although the wording of the section has been altered. Section 19 has throughout been to the effect that except as provided in the Act, the relations between a landholder and a tenant of his private land are not regulated by the Act. There was nothing in the Act as it stood before 1936, nor is there anything in it now, which prevents a landholder from leasing his private land on whatever terms he may think fit, but, of course, if he leases it on terms which imply a conversion of the land into ryoti land all the provisions of the Act with regard to ryoti land will apply and will overrule any provisions in the lease which are in conflict with the provisions of the Act, I may here attention that apart from Section 181 the amended Act is on all fours with the measure as It stood before 1936 so far as this case is concerned.
3. In Rajendramani Devi Garu v. Yellappa Ramu Naidu : (1920)39MLJ565 , a Division Bench of this Court had to consider the terms of a conversion of private land into ryoti land and the judgment appears to go to the length of saying that the terms of a conversion can be enforced even if they are inconsistent with ryoti tenure. It was observed that Section 181 contemplated a conversion from home farm land into ryoti land, but that the Legislature had not made any special provision with regard to the terms on which the conversion might be made. It was on this line of reasoning that the Court held that the contract between the parties was enforceable. In my opinion this is going much too far. When there is a conversion of private land into ryoti land the terms of the contract which are not inconsistent with ryoti tenure can be enforced, but once the conversion has taken place the tenant has all the rights given to a ryot by the Act, and if the rent fixed is unfair the remedies contemplated by the Act are open to him.
4. The sole question in this case is whether the instrument of the 7th October, 1920, operated to convert the appellants' kambattam lands into ryoti lands. The khat executed by the vendee embodying the terms of the contract, after reciting that the appellants had agreed to sell to him the kudivaram right in the lands for Rs. 33,492, and that they had received the purchase consideration, proceeds:
You have hereby sold to us all the rights possessed by you in the said lands excepting the meIwaram rights thereto. Therefore, in the matter of our enjoying the said lands henceforth from son to grandson and so on in succession with powers of alienation by way of gift, exchange, sale, etc., you or your heirs shall never raise dispute either with us or with our heirs.
5. Then follow the other terms relating to the sale and these are set out in clauses numbered 1 to 10. It is only necessary to refer to the first, second, third and ninth clauses, as the others have not been referred to in argument and obviously have no bearing on the question under discussion. The first clause stipulates for the payment of a fixed rent and the second clause for the payment of interest at ten annas per cent. per mensem on arrears of rent. The third clause provides that the cist payable to the landholder shall be a first charge on the land, and the ninth clause states that the appellants shall be entitled to the trees standing on the land at the time of the contract, but trees grown after that date shall belong to the first respondent. It is suggested that these terms are inconsistent with ryoti tenure and therefore the document cannot be read as converting the land into ryoti land, but only as a special contract relating to private land. The document must be read as a whole in order to gauge its effect and when this is done I consider that it must be held that there has been a conversion. The main characteristic of ryoti tenure is the permanent vesting in the tenant of the kudivaram right and the permanent retention of the melwaram right by the landholder. That is the position here. By virtue of the contract the kudiwaram right was transferred absolutely to the first respondent and he obtained permanent rights of occupancy on the terms set out in the contract. It is conceded by the learned advocate for the appellants that if the document had stopped at the sale of the kudivaram right there would have been a conversion within the meaning of Section 181. I can see nothing in Clauses 1, 2, 3 and 9 which alters the position: If the document had stopped merely with the sale of the kudivaram right it would still have been necessary to fix the rent payable to the appellants as the possessors of the melwaram right, and the fact that the rent was fixed in the contract without contemplation of any change in the rate does not alter the position. The landholder and the tenant may agree on a permanent rent, but if they do this does not take away the right of the tenant to sue or apply for a reduction of the rent if the lands have been converted into ryoti lands. Section 187 (1) (c) says so. Nor is the provision with regard to the payment of interest inconsistent with ryoti tenure. The payment of interest on arrears of rent is expressly provided for in the Act. Under Section 61 an arrear of rent shall bear simple interest at the rate of one half per cent. per mensem from the date on which the arrear fell due until it is liquidated. Therefore, Clause 2 of the additional terms is in full accord with the Act, except that the rate is higher. Again this contingency is expressly provided for. Sub-section 2 of Section 187 says that nothing in any contract between a landholder and a ryot made after the passing of the Act shall affect the provisions of Section 61 relating to interest payable on arrears of rent so as to increase the amount payable. The only comment that the learned advocate for the appellants has to make on Clause 3 is that the cist payable to the appellants is made a first charge on the lands only and not on the lands and produce which the Act would allow. The freeing of the charge on the produce is, however, a concession to the tenant and there is nothing in the Act which prevents a landholder making a concession to his tenant. The appellants receive no help from Clause 9. The trees belonged to the appellants and without this clause would have passed to the first respondent. The Act does not prohibit a tenant conceding to the landholder the right to the trees on the land, and on a conversion of private lands into ryoti lands the parties can contract as they please so far as the trees are concerned.
6. In my opinion where a landholder possesses private lands within an 'estate' and sells the kudivaram right in those lands but retains the melwaram right he must be deemed to have converted the lands into ryoti lands, and additional terms will not alter the nature of the transaction. The additional terms will stand, provided that they are not inconsistent with what the statute states shall apply to ryoti tenure. To the extent that the additional terms are inconsistent with ryoti tenure they must be regarded as being void. The argument which has been advanced that this interferes with the right of the landholder to contract freely with regard to his private lands seems to me to be beside the question. The landholder does not need to enter into a contract which will have the effect of converting his private lands into ryoti lands, but if he does contract and the tenure which he creates amounts to ryoti tenure he must accept all the consequences of his action. The appellants here could have sold the lands in suit to the first respondent absolutely or they could have leased them at any rent they might have agreed upon without separating the kudivaram right from the melwaram right, but as they chose to separate the kudivaram right from the melwaram right and grant a permanent right of occupancy on the basis of the payment of rent relative to the melwaram right they must, in my judgment, be deemed to have converted the lands into ryoti lands.
7. For these reasons I would dismiss the appeal with costs.
Venkataramana Rao, J.
8. I agree.
Krishnaswami Aiyangar, J.
9. With much reluctance, I feel myself obliged to differ from the opinion expressed by my learned colleagues.
10. The question with which we are faced in this case relates to the true construction of a khat or counterpart of a lease, embodying the terms of a contract entered into between the appellants and the respondents on the 7th October, 1920. By that contract, the appellants, who owned a parcel of private land in an estate belonging to them, sold to the respondents, the kudivaram interest alone in it retaining the melwaram interest for themselves. There are in the deed, certain other terms and conditions to some of which a reference is necessary, for a correct decision, but there can be no doubt that the dominant object in the mind of the parties was to convey to the respondents the kudivaram right in the land. This is not indeed disputed, but what is disputed is, whether there has been a conversion effected by the instrument of what was admittedly the appellant's private land into ryoti so as to confer on the respondents those rights and privileges which are recognised by the Madras Estates Land Act, 1908, as inhering in a ryot holding ryoti land in an estate.
11. That the legal incidents which appertain to private land in an estate essentially differ from those annexed to ryoti land is too plain for argument; in fact it is a matter of concession. The differences are fundamental, the Act drawing a sharp distinction between the two classes of land. Private land is to borrow a word from the English Law of Real Property, the freehold of the landholder over which he has absolute unrestricted dominion. He can deal with it in any manner he likes, enter into any kind of contract he chooses and create any form of tenure in it he pleases. Section 19 of the Act preserves to him an unfettered freedom of contract as regards this class of land, a privilege not recognised in respect of any other class of land within the estate. It declares in explicit terms that the relations between a landholder and a tenant and be it noted, not a ryot of his private land are not to be regarded as regulated by the provisions of the Act. Language cannot be plainer. Even the name 'ryot' is here avoided when referring to the person who cultivates the private land, and the colourless term tenant seems deliberately to be adopted.
12. The only way by which the landholder can make those provisions applicable, is by converting his private land into ryoti land and conferring occupancy right in the land, so converted. Such a course was permitted by Section 181 as it stood before the amendment made by Act VIII of 1934. The section ran as follows:
Nothing in Sections 6, 8, 10, 11,12; 19 and 46 shall confer; a right of occupancy in or shall apply in any way to, a landholder's private land.
Provided that nothing contained in this section shall prevent a landholder from converting his private land into ryoti land.
13. Of the sections enumerated here all except Section 16, relate to the acquisition, or transfer of occupancy rights, or to the limitations subject to which these rights are to be enjoyed in lands other than private lands. Section 19 as already seen, was enacted to preserve the rights of the landholder in the latter category of land. Reading Section 181 together with its proviso the meaning is clear that the landholder could if he chose convert his private land into ryoti land with a view to confer occupancy right in it, and could also confer such a right. It was the same meaning that has been made plainer by the amendment introduced into the section in 1934. The effect of the amendment is not to make a change in the law, but only to make the meaning more explicit than before, and this was not denied at the bar during the arguments. The section as now amended enacts that:
A landholder shall be at liberty to convert his private land into ryoti land and confer occupancy right in land so converted.
14. On a literal interpretation, two steps or processes seem to be necessary before the tenant can claim the rights, and privileges of a ryot, in land which was originally private land; first, a conversion from the one class to the other and second, the grant of occupancy right in the land after conversion. The amended section which may well be regarded as merely declaratory of the law as it was before the amendment thus appears to warrant the view that the mere grant of occupancy right in private land does not by itself suffice to alter its character unless it is preceded by an act of conversion. There is no objection, however, to the conversion and the grant being made by one and the same instrument provided the intention is made sufficiently clear.
15. The real question then is not whether permanent rights of occupancy have been granted by the khat, which of course it does, but whether the landholder had also fulfilled what appears to me to be a necessary condition precedent, namely, the conversion of his private land into ryoti land. It is necessary in my view to keep the two things separate in order to avoid falling into a possible error. On a question of this kind there is no presumption one way or the other and it, therefore, lies on the party who sets up a case of conversion to make it out. If he wholly fails, or only succeeds to the extent of creating a doubt, he derives no benefit out of it, and must fail. The question is obviously one of intention to be deduced or inferred from a consideration of the entire deed, bringing into action every part of it and rejecting none, unless the expressions are contradictory and incapable of being reconciled, or there is a repugnancy which calls for the rejection of one part in order the more effectually to carry into effect the real intention of the parties gatherable from the part retained. The rule is thus stated by Kelly, C.B., in Gwyn v. Neath Canal Co. (1868) L.R.3 Ex. 209,
The result of all the authorities is that when a Court of law can clearly collect from the language within the four corners of a deed, or instrument in writing, the real intention of the parties, they are bound to give effect to it by supplying anything necessarily to be inferred from the terms used and by rejecting as superfluous whatever is repugnant to the intention, so discerned.
16. Rejection should be the last resort, after every means to reconcile are exhausted. There is ample authority also for the proposition that the Court should rather lean towards a construction which would give a meaning and effect to every one of the clauses in a deed than towards one which would result in a nullification of any one or more of them in the end. These are some of the principles of general application which I should bear in mind in approaching the construction of a written instrument.
17. It is to be observed at the outset, that in the deed in question, there are no doubtful words or ambiguous expressions, no terms of technical import and no repugnant clauses. The language is plain, and the meaning is clear; and the intention behind each one of the clauses whether taken separately or in combination is easily gathered and creates no difficulty. Nor have I any doubt that the parties intended to make all of them equally operative, and binding so that their future relations may wholly be governed by them. We should hesitate to accept a construction which will result in that intention being abrogated in whole or in part.
18. I readily grant that a necessity for such a course may arise, in the class of cases envisaged by Kay, J., in Pawsey v. Armstrong (1881) L.R. 18 Ch. D.698, where be observed:
The truth is that there are certain legal relations which are entered into by agreeing to certain conditions, and when those conditions are agreed to, it is quite idle for people to superadd, or to attempt to superadd, a stipulation that the necessary legal consequences of those conditions shall not follow from the arrangement.
19. Such a stipulation may have to be ignored but not before fully satisfying ourselves that the necessary conditions are made out for the excision. An illustration of this principle is to be found in the case where the relationship of partners must be held established by law between persons who have agreed to share the profits of a business carried on by all or any of them acting for all in spite of the superimposition of a contrary term in the articles. The proposition, however, can have no application except in a case where all and not some only of the conditions requisite for constituting the relationship are present. If the conditions fall short or are of a character, which indicates a different relationship, the proposition cannot apply.
20. I am quite unable to agree that the governing consideration lies in the fact that the landholder has in the case on hand parted with the kudivaram right in the land retaining with himself the melwaram interest only. Had the expression 'kudivaram' been declared by statute to connote ryoti tenure or if I could persuade myself that it is a technical word, a term of art, having the same legal import, I should readily assent to the proposition. That, however, is not the case. It is quite clear that the word has been used in the Act (e.g., Section 3 (2) (d) in a non-technical sense to denote the kind of tenure held by a tenant who has a permanent right of occupancy. In its literal sense, the word kudivaram only means the cultivator's share of the produce, the word melwaram meaning the landholder's share Suryanarayana v. Patanna (1918) 36 M.L.J. 585 : L.R. 45 IndAp 209 : I.L.R. 41 Mad. 1012 Venkata Sastrulu v. Seetharamudu (1919) 37 M.L.J. 42 : L.R. 46 IndAp 123 : I.L.R. 43 Mad. 166,171 , It is customary however to speak of the ownership of land in this Province as being composed of the kudivaram and the melwaram interests, or as the ownership of both warams. By a process akin to a metonymic user, the expression kudivaram interest is frequently employed to denote the species of interest which a tenant has in the land in his permanent occupancy, whether that land lies in an estate or outside it. This being the ordinary, popular sense, it must be taken that the word was used in this sense in the document. What is important to remember in this connection, is that kudivaram interest and ryoti tenure are not convertible terms having the same legal significance.
21. When we speak of ryoti land or ryoti tenure, the picture that is called up to our mind is the picture of that peculiar species of cultivable land in an estate, defined in the Act, to which and to the holding of which, an entire body of mostly new and special rules have been annexed by force of the statute. Among the incidents which since the Act, attach to this species of land, the most important no doubt is the permanency of the tenure and the fixity of the rent, guaranteed to the tenant under stringent safeguards, subject, however, to certain conditions to which it is unnecessary to refer for the present purpose. But the other incidents, whatever their relative importance, do exist, and should not be ignored when seeking to obtain a knowledge of the true measure and the real nature of that right. To put it in a simple form, kudivaram is only a part though a major part of the whole. But 15 annas do not make a rupee, nor 19 shillings a pound. To say so is not arithmetic. Neither is it in my opinion law and yet this is in substance the argument of the respondents. With all respect, therefore, I am unable to assent to the proposition that the conveyance of that species of right known as the kudivaram interest amounts to the creation of a ryoti tenure in the land conveyed.
22. To examine the maker still further, it is to be observed that this document came into existence more than twelve years after the passing of the Madras Estates Land Act. The expressions, ryot and ryoti land which were newly coined by the Act to replace the words 'tenant' and his 'interest' in the holding, in order probably to emphasize the permanent character of that interest, had by the time of the deed become quite familiar to all, and yet it is somewhat strange, that these words have been studiously, as I think, avoided in the conveyance. It was in fact suggested that the deed was drawn up with a knowledge of the decision reported in Rajendramani Devi Garu v. Yellappa Ramu Naidu : (1920)39MLJ565 . If in these circumstances the parties had really bargained for a conversion of the private land into ryoti land, it is not a little remarkable that language well known to denote that meaning should not have been employed instead of another, and at all events, a less decisive expression. There is, it may be observed, no suggestion of any overreaching by the one party over the other in this case.
23. Apart from any such narrow consideration, when one comes to look at the entire document, it becomes, in my opinion very difficult to resist the conclusion that the landholder was not here seeking to convert his private land into ryoti land. I have earlier in this judgment endeavoured to recapitulate the rules which have to be brought to bear on this question. One of those rules is that the intention of the parties is to be collected from the whole of the document, not ignoring any part. If on this principle, the conditions of the contract, contained in 'the particulars of the remaining terms relating to the sale' as described in the instrument are considered, there are at least two which definitely militate against the theory of a conversion. Clauses 1 and 4 of these particulars taken together have the effect of fixing a permanent immutable rent payable year after year by the lessees, irrespective of the failure of, or a diminution in the yield, from whatever causes due. Clause 2 again provides that arrears of rent should carry interest at the rate of ten annas per cent. instead, of at the rate of eight annas fixed by Section 61. These two terms which were specifically agreed to and undoubtedly intended to be operative, annex to the tenure created by the deed incidents which are not only foreign to a ryoti tenure under the Act, but materially opposed to it. Remembering that it is open to the landholder to create any kind of derivative tenure not opposed to the general principles of law, I find it difficult, nay, impossible, to attribute to him an intention to bring into being one tenure, when the very terms of the contract clearly point to the parties having had in mind a different one, with different incidents. It is not for the Court to evaluate the terms for the purpose of accepting some and rejecting others. On the contrary, every rule of law and every rule of equity would seem to prohibit its so doing. That there is a fundamental divergence between the terms of the contract in question here and the incidents annexed to a ryoti tenure under the Act will, appear plainly from a perusal of Section 187. A ryot's right to sue or apply for a reduction of the rent on the grounds stated in Clauses (a) and (b) of Sub-section (1) of Section 38 or Sub-section (3) of Section 32, or on the ground mentioned in Clause (c) of Sub-section (1) of Section 38 is by Section 187 (1) is preserved as an inviolable privilege not to be destroyed or overriden by any contract to the contrary whether made before or after the Act. Similar in effect is Section 187 (2) in so far as the rate of interest fixed by Section 61 is sought to be enhanced. With these inconsistent provisions contained in the deed before us I consider that it is not open to the Court to infer that it was the appellant's intention to convert his private land into ryoti land. The other clauses in the deed are indecisive, and I agree that they do not materially affect the construction. What presses on my mind is that it is not correct for a Court to infer a tenure by taking into account some only of the terms of the contract ignoring others, when it is possible, and I think it permissible to give effect to all the terms by treating it as a special contract and one not entered into for the purpose of impressing a ryoti tenure on the land comprised in the khat.
24. I may add a word about the decision reported in Rajendramani Devi Gam v. Yellappa Ramu Naidu : (1920)39MLJ565 . That was a case where a ryoti tenure had been either expressly created by contract, or admitted to have been so created on the pleadings, and the question arose whether terms and conditions repugnant to such a tenure should be recognised. The Court held that the conditions were valid and enforceable. The ground of the decision is to be found in the concluding sentences in the judgment where the learned Judges say that the Legislature has not made any special provision as regards the terms on which a conversion may be made, and that in the absence of such a provision, the contract of the parties on the basis of which the conversion was made, should prevail. If the learned Judges here meant to lay it down, that there is no objection in law to the superimposition by contract of terms alien to a ryoti tenure, after once creating such a tenure, I must with great respect, dissent from that view, which I think is, a view which runs counter to the rule stated by Kay, J. The position here is, however, different. The question is not as to the validity of terms added which detract from the quality of a tenure created and intended to be created but whether there has been an effectual creation of the tenure itself.
25. For the reasons explained, I regret I am unable to share the opinion of my learned colleagues. I consider that the appeal should be allowed with costs throughout.