1. These are appeals from the judgment and decree of the District Judge, Tinnevelly, in first appeals in 22 summary suits tried by the Honorary Deputy Collector of Tinnevelly under the Estates Land Act. The suits were brought by ryots for commutation of rent under Section 40 of the Act.
2. The Deputy Collector has carefully-gone into the relevant facts bearing upon the rent, but in all these suits except four viz., those in S.A. Nos. 630, 640, 642, 647 of 1926, in which no such rent was paid, he has ignored the circumstances that cash or kattukuthagai rents had prevailed between the landholder and ryot for certain periods previous to the suits. He says in his 23rd para. that these rents are of recent dates and cannot be taken as a basis. On the other hand the learned District Judge has entirely based his conclusions on calculations founded upon these rents, ignoring the other matters inquired into by the Deputy Collector. Neither of these methods can be commended. The Collector is bound under Section 40 to have due regard to the average value of rent actually accrued due to the landholder during the preceding 10 years. Obviously a very good criterion of the rent actually accrued duo is the money value agreed upon by the parties. To attract the provisions of;S. 40 it is necessary that at the time of suit the ryot is liable to pay in kind, but it is not necessary to assume that for the previous 10 years he has paid in kind, and to make the calculation upon that fictional basis. The fact that in that period he has paid in cash can certainly be taken into consideration. But it is only one fact to be duly considered in relation to other circumstances.
3. There is no warrant for the lower appellate Court treating it as the one basic fact, and then not even taking these rents at their face value, but artificially enhancing them with reference to the current prices of paddy. The suits except the four mentioned above must be remanded to the Court of trial for reconsideration of the commutation rates after having due regard to the kattukuthagai proved to have been paid in each case. Costs to abide the result.
4. As regards the suits which are not affected by these leases, we do not find that the first Court has erred in any way and certainly the lower appellate Court was not justified in treating the temporary leases as ' the money rent payable by occupancy ryots' contemplated in Section 40, Clause 3 (b) That sub-section merely means that if for neighbouring occupancy ryots a regular money rent has been fixed, which, subject to the provisions of the Act will be permanent, that rent shall be taken into consideration. It has no reference to temporary leases such as the (kattukuthagai leases in these suits.
5. The respondent takes objections to the Deputy Collector's commutation on certain specific grounds : (1) The Deputy Collector has excluded Fasli 1329 from the 10 years average struck under Section 40, Clause 3 (a), because the prices in that year wore abnormal owing to the war. And for Fasli 1328 he took a reduced rate on account of the same abnormality. It is contended that he must take the full 10 years, so long as none of them have been actually notified as famine years. Probably to take 10 years as they stand, and then after due consideration to make such modifications as the circumstances of each demand would be in stricter conformity with the Act. But the course adopted by the Deputy Collector has been approved in Ramayya v. Zamindar of Mandasa A.I.R. 1926 Mad. 760, and we see no reason to condemn it. It comes to the same thing whether the modification is made at the) beginning or at the end of the calculation (2) The Deputy Collector has allowed for shrinkage occurring after the paddy due to the landholder as melvaram has been measured on the threshing floor as set forth in para. 14 of his judgment. The landholder admitted that shrinkage was taken into consideration; only he said it was done by heaping the measure. The Deputy Collector has found that this method was not employed; and he is fully justified in providing otherwise for shrinkage by a seven per cent. deduction.
6. (3) Sarasaris.-The landholder wished the average crop to be estimated by dividing the gross outturn only by such fields as were actually cultivated. The Deputy Collector on the other hand though excluding mamul waste has counted in with the fields those ordinarily cultivable but left uncultivated in particular seasons. We agree that his is the fairer method; because if the varam system prevailed the landholder would get nothing from fields unavoidably left fallow.
7. In these four cases therefore the judgment of the Deputy Collector will be restored, and that of the lower appellate Court reversed, with costs in both appellate Courts to the present appellants.
8. As regards the memoranda of objections it is conceded that in second appeals 631 and 632 items included in the first Court decree have been accidentally omitted from the lower appellate Court decree. This should be noticed when the decrees are again drawn up The other memoranda of objections will be allowed so far as indicated above without costs.