1. This civil revision petition arises out of an appellate judgment confirming the decision of the District Munsif that a suit filed for rent on certain land situate within an estate under the Madras Estates Land Act is one of which the Civil Courts cannot take cognizance.
2. The appellants who are the plaintiffs held the estate as successors to an ijaradar or lessee from the original landholder. The lands in question have for many years been held under a rather curious tenure known as arakandacharam the feature of which is that in addition to the ordinary rent which has to be paid by an ordinary ryot, the tenant is also required to pay a quarter of the produce to the landholder. The plaintiffs' case was that this tenure is an indication that the land is not ryoti land, but homefarm land belonging to the Zamindar and that a suit for the rent thereof accordingly lies in a Civil Court and not in the Revenue Court. Under Section 185 of the Estates Land Act, the burden lies upon the plaintiff to show that the land is not ryoti land. He adduced very little in the way of documentary evidence to indicate the nature and origin of the tenure. There was oral evidence which the trial Court accepts that in some cases, but not invariably, homefarm land in the estate is in fact enjoyed on a tenure similar to that of the defendants. The accounts showing the actual history of the payments of rent in respect of this land before 1898 were excluded from evidence on the ground that they do not purport to be signed by anyone or to be in any particular person's handwriting, and that therefore no presumption can be drawn regarding them under Section 90 of the Evidence Act. It has been suggested by Mr. Venkatachariar that this difficulty with reference to Section 90 of the Evidence Act can be got over by calling in aid Section 32 (2). But the latter provision relates only to the relevancy of evidence; not to the manner of its proof. Before a relevant statement is admitted into evidence, its authorship has to be proved. For that purpose, Section 90 is commonly relied upon in the case of old documents the authorship of which cannot be proved by persons who knew the handwriting or can recognise the signature of the maker. It has been held in Naina Pillai Marakayar v. Ramanathan Chettiar (1916) 33 M.L.J. 84 and Chandukutty Nambiar v. Rama Varma Raja : AIR1939Mad926 , that this section cannot be relied upon for the proof of a document which does not purport to be in any known person's handwritting or to be signed by any known person. I hold that these early accounts were rightly rejected by the lower appellate Court.
3. The two Courts below have held that though the rent paid by the defendant's may differ from that due on other lands in the village known to be held on ryoti tenure, the plaintiffs have not established that the peculiar tenure necessarily indicates that the land is homefarm land. It is pointed out that there is no evidence that the land was ever cultivated by the landholder and that there appears to be no document in which the land is described as kambattam or homefarm land.
4. It is argued for the appellant that the findings of the lower Courts have been vitiated by their reliance upon Exs. I and II, which were not admissible in evidence. These are two old pattas of the year 1867 which have been put forward by the defendants as explaining the origin of this anomalous rent. The defendants' theory was that their predecessors were originally co-tenants along with one Rama Rao, but that they took a sublease of Rama Rao's share and that Rama Rao's share was eventually acquired by the landholder and so passed to the possession of the plaintiffs. Now, it cannot be contended that the defendants have proved completely this theory as to the origin of the payment in kind which is part of the rent now payable, but the demonstration that there was originally a co-tenant called Rama Rao does go some way to make this theory probable. Both the Courts below have held that Exs. I and II are inadmissible as proof of the letting to Rama Rao because they were not registered, One of the documents being a patta which provides for an annual rent and the other being a patta which provides for a perpetual lease. Having come to this conclusion, both the Courts below, under the guise of treating these documents as admissible to show the character of the possession, have in fact really used them to prove the transaction itself--the letting to Rama Rao and the terms upon which that letting took place. As I am of opinion that the finding that these documents require registration is unsustainable, I need only refer to the decision in Mahalakshmamma v. Suryanarayana (1928) 55 M.L.J. 23 : I.L.R. 51 Mad. 977, to indicate the extent to which the collateral use of a document which should have been registered, can be permitted. Clearly the Courts below, on their own findings, have overstepped these limits. But I doubt very much the correctness of the findings of the Courts below that these two documents required to be registered. In my opinion, they are both pattas within the terms of Sections 3 and 4 of the Rent Recovery Act VIII of 1865 and I am unable to accept Mr. Venkatachariar's contention that a first patta is not a patta or that a patta which provides for a permanent tenure cannot be a patta within that Act. When once it is conceded that these two documents are pattas under the Rent Recovery Act, they do not require to be registered under the terms of the Registration Act of 1866 which prevailed at the time they were executed. It has, however, been contended that Section 17 of the Registration Act, read with Section 49, excludes from evidence any documents which under the present Registration Act are to be registered, even though under the law which prevailed at the time when the document was executed, registration was unnecessary. It must be admitted that the wording of the first clause of Section 17 is capable of the interpretation which has been put upon it and in the Courts below a very brief judgment of a single Judge of the Lahore High Court was quoted as authority for that interpretation. But there is a considerable body of authority in favour of the contrary view. It has been pointed out that the wording of Section 17 repeats the wording of the section of the previous Act and that this wording has not been interpreted as taking away the evidential value of a document which under the law prevailing at the time when it was executed, complied with all the necessary formalities; and it has been pointed out that to interpret Section 17. (1) of the Registration Act, 1908, in its most literal sense would involve the conclusion that a document which did not require registration when it was executed and which could not now be registered owing to lapse of time, would be shut out of evidence--a very anomalous position which would require unambiguous language to justify it. This view has been taken in Bombay (vide Desai Motilal Mangalji v. Desai Parashotam Nandlal) I.L.R.(1893)Bom. 92, in Calcutta (vide Ram Coomar Singh v. Kishan I.L.R.(1882)Cal. 68, and in Allahabad (vide Intisam Fatima v. Ali Baksh) (1911) 8 A.L.J. 609, and the only contrary case which has been quoted before me is this very brief decision of a single Judge of the Lahore High Court. It seems to me there is great weight of authority in support of the more reasonable view that Section 17 (1) of the Registration Act, when read along with Section 6 of the Indian General Clauses Act, does not destroy the validity or the admissibility in evidence of a document which complied with all the necessary formalities as they existed at the time of its execution. I must hold therefore that Exs. I and II are not inadmissible in evidence to prove the nature of the transaction and though I do not agree with the reasoning of the Courts below, their conclusion is, in my opinion, correct.
5. One further point which has been argued is that on the defendants' case that they pay rent in kind for a portion of their holding as sub-tenants of the assignee of the original ryot the suit so far as it relates to this portion of the rent is triable by a Civil Court. In my opinion this contention must fail-Assuming that the plaintiffs have succeeded to the rights of one Rama Rao who was a tenant under the landholder, it is undeniable that the present state of affairs has existed for very many years. Under Section 8 (1) of the Madras Estates Land Act, whenever before or after the commencement of this Act the occupancy right in any ryoti land vests in the landholder, he shall have no right to hold the land as a ryot but shall hold it as a landholder; and under Sub-section 5 of Section 3 the term 'landholder' includes every person entitled to collect the rents of an estate by virtue of any transfer from the owner. It seems to follow that when the Madras Estates Land Act came into force, the plaintiffs being the landholders and also transferees of the ryoti interest in part of this land, must hold that land as landholders and not as ryots. The defendants having been in possession of the land, which is certainly on the findings ryoti land, when the Act came into force, they acquired occupancy rights therein.
6. It follows that the suit for the whole of this rent must lie only in the Revenue Court and the civil revision petition is' therefore dismissed with costs.