1. This batch of second appeals arises out of a batch of suits filed by the appel-lant-zamindar of Ettiyapuram under S. 77, Madras Estates Land Act, to recover arrears of land rent and tree tax due from the several defendants in the several suits who held the land and the trees under pattas granted to them. There was no dispute about the land cist, and the controversy was only in respect of the right of the landholder to claim tree-tax. The case of the landholder so far as the tree-tax was concerned was on a two-fold basis, viz., custom and contract. The custom pleaded was that the trees were held on lease separately & distinct from the land & they were the property of the landholders irrespective of whether they stood on the holdings of ryots or outside them and irrespective of whether they came into existence before or after 1908. This custom was denied by the ryots, but both the trial court and the learned District Judge on appeal have held that there was a valid & enforceable custom on the date of the passing of the Madras Estates Land Act in 1908 under which the landholder was entitled to collect tree-tax not only in respect of trees standing on poromboke land but also on trees standing on the holdings of the ryots. It was also in evidence that according to this custom the landholder could grant a lease of trees on the holding of one ryot to a person other than that ryot.
The courts below, however, have confined the rights of the landholder founded on this custom to the trees which were in existence at the commencement of the Madras Estates Land Act in 1908. They denied his right to levy any tax on the trees which came into existence subsequently on the holdings of ryots -- trees which had either been planted by the ryots subsequent to 1908 or which grew thereafter spontaneously. The reason for so confining this custom was the provision contained in Section 12 of the Madras Estates Land Act. That section runs thus:
"(1) Subject to any rights which by custom or by contract hi writing executed by the ryot before the passing of this Act are reserved to the landholder, every ryot shall have the right to use, enjoy, cut down, carry away or otherwise dispose of all trees now in his holding and in the case of trees which after the passing of this. Act may be planted by the ryot or which may naturally grow upon the holding, he shall have the right to use, enjoy, cut down, carry away or otherwise dispose of them notwithstanding any contract or custom to the contrary.
(2) It shall be open to a ryot on payment to the landholder of such compensation as may be fixed by the Collector on an application made to him in that behalf, to acquire the rights reserved to a landholder by custom or by contract in writing executed as aforesaid, in any trees which were in the holding of the ryot before the passing of this Act; Provided that nothing contained in this sub-section shall be deemed to affect the rights of any third person or to entitle a ryot to acquire com-pulsorily the landholder's rights to any trees included in a tree patta issued by him to a third person."
2. The landholder who is the appellant in this batch of second appeals once more asserted before me his rights to levy a tax even on trees which were or might be planted by the ryot or which might naturally grow on the holding after the passing of the Act by virtue of this custom. I have no hesitation in holding that on the plain language of section, his contention must be rejected. Section 12(1) very clearly makes a distinction between two classes of trees, namely, (l) "all trees now in his holding" that is, trees in the holding of the ryot on the date of the passing of the Act; and (2) "trees which after the passing of this Act may be planted by the ryot or which may naturally grow on the holding", that is to say, trees which come into existence subsequent to the passing of the Act. The word "and" separates these two classes. In respect of trees falling in the first category the rights of the ryot are subject to any rights which by custom or by contract in writing executed by the ryot before the passing of the Act are reserved to the landholder whereas as regards the trees falling in the second class the rights of the ryot are absolute and not restricted by the terms of any contract or custom to the contrary. The words "notwithstanding any contract or custom to the contrary" in the second part of the first sub-section leave no room whatever for doubt. The position is, if there is a contract or custom in respect of trees in existence on the date of the passing of the Act, the custom or contract will prevail. But such a custom or contract will not prevail in respect of trees coming into existence after the passing of the Act. In respect of the latter class of trees, the ryot will have the right to use, enjoy, cut down, carry away or otherwise dispose of them. If the ryot has such absolute rights to the trees, I fail to see how nevertheless the landholder can claim to levy a tax on them. In my opinion on a reading of the plain language of the enactment, the landholder is not entitled to levy any tax on trees which come into existence on the holding of any ryot after 1908.
3. It was said that the custom pleaded and established was a custom which would also comprise trees which were either planted or which grew upon the holding subsequent to the passing of the Act. Assuming that this is the evidence, I think the custom to this extent must be held to be invalid. Such a custom would be directly in contravention of an express statutory provision, and, therefore, cannot be upheld by courts. In -- 'Arumuga Chetti v. Raja Jagaveera Rama Venkateswara Ettappa',28 Mad 444 (A), it was held that a custom can be upheld only so far as it is not in conflict with statute law (see also -- 'Fischer v. Kamakshi Pillai', 21 Mad 136 (B)).
4. There appears to be no reported decision directly bearing on this point. Certain observations in the leading Privy Council ease in - 'Rajah of Ramnad v. Kamid Rowther', AIR 1926 P. C. 22 (C), were sought to be relied on by the appellant as supporting his contention that landholder could have a right by virtue of custom or contract to tax trees which came into existence even subsequent to the passing of Madras Act, I of 1908. It must be said at the outset that their Lordships were not called upon to decide this particular question in that case. It does not appear from the reports of the judgments of the courts below that the landholder was there laying any claim in respect of trees which came into existence after 1908. The suits themselves were filed soon after the passing of the Act, within less than ten years of it, and it is not likely that any tax claimed in respect of trees which were not even ten years old. Actually it appears that toddy was being tapped from the trees in question. At page 26 their Lordships say:
"Their Lordships are in entire concurrence with the learned Judges as to the results in law if the . trees are held on what may be called separate title. In such a case Section 12 of Madias Act does riot apply, arid they think that the case cited -- 'Murugappa Chettiar v. Ramanathan Chettiar', AIR1915 Mad 397 (D), was rightly decided."
I think it neither safe nor reasonable to apply this dictum to all trees on the holding of a ryot irrespective of whether they came into existence before or after the Act. The scope of this observation can be gauged by reference to the ruling in -- 'AIR 1915 Mad 397 (D)', which obviously dealt with trees which were on the holding before the passing of the Estates Land Act. It was held by a Divison Bench of this court that money due as tax payable under three pattas was not rent within the definition of that term in Section 3(11) of the Madras Estates Land Act as it then stood and therefore the landholder was not entitled to sue for the recovery of such amount under Section 77 of the Act. The argument in the case was that the trees themselves constituted a holding, but that argument was not accepted. In the case before us, we are not concerned with any pattas issued merely in respect of trees. In the pattas with which we are concerned, in addition to the cist payable on the holding the tax payable in respect of the trees on the holding is also mentioned and the aggregate amount is shown as the amount due under the patta. I fail to see how advantage can be taken of the general observation of their Lordships of the Judicial Committee above cited to support a claim which runs directly counter to the provisions of Section 12(1) of the Act.
At page 23, their Lordships enumerate the three situations in which palmyra trees may be held, namely:
(1) They may simply be growing on land which is held by a ryot, though no mention of trees be made in any lease; (2) they may be growing on land held by a ryot but they may be let as a separate entity in his lease; and (3) they may be let to a person on whose land they do not grow. The dispute in these second appeals is really in respect of trees in the second situation and as regards which trees their Lordships refused to express any opinion.. I am unable to derive much assistance from the decision of Devadoss J. in --'Soundararaju Mudaliar v. Venkoba Rao', AIR 1925 Mad 490 (E). There is nothing in that judgment to indicate that the learned Judge was consciously dealing with the claim of the landholder to levy tax on trees which came into existence on a holding subsequent to the passing of the Estates Land Act. The following passage in the judgment does not really support she case of the landholder that there could tie a custom even in respect of trees which came into existence after the Act; "The custom, therefore, that the trees are held differently from the land has been satisfactorily proved, and such being the case, when the landlord let the plaintiff into possession of the plaint land and reserved to himself the right of holding the trees, it is difficult to see how he could claim the trees as a part of the land. No doubt in ordinary cases, unless there be a custom or contract to the contrary, the occupancy tenant would be entitled to the trees in his holding; where a custom by which the trees on the land could be held apart from the land itself, the provisions of Section 12 of the Estates Land Act do not apply."
Section 12 recognises only a custom in respect of trees standing at the date of the passing of the Act and not trees coming into existence thereafter.
5. Reference was made by learned Counsel, Mr. Champakesa Aiyangar, for the appellant to the judgment of Somayya J. in -- 'Jankai Bai Animal v. Chiniah Nadar', AIR 1913 Mad 367 (F), End to the unreported decision of Krishnaswami Aiyangar J. in -- 'C. R. P. No. 2121 of 1939 (Mad) (G)'. But they have no bearing whatever on the question which now falls to be decided. In these cases the learned Judges were concerned with the question whether tree tax would be rent so as to enable the landholder to resort to summary procedure under Section 111 of the Estates Land Act. There is evidently difference between the view taken by these two learned Judges and the view taken by Leach C. J. and Lakshmana Rao J. in -- 'L. p. A. No. 40 of 19-13 (Mad) (H)', which was against the decision of Byers J. in a batch of second appeals, S. A. Nos. 1054 to 1065 of 1940. It is a matter of history that at one time the view ws that tree tax would not be rent so as to, enable the landholder ei-en to file a suit under Section 77 to recover the same in a revenue court and Section 134 had to be amended to enable the landholder to resort to the provisions of Section 77 for the recovery of tree tax. Whether the landholder could have also the right to the summary procedure under S. 111 etc., of the Act to recover arrears of tree tax cannot be said to have been finally decided by this Court. But that point does not arise for decision in this batch.
6. The decision, however, of Byers J. in S. A. No. 1054 to 1085 has a bearing on the question now under discussion. Having held that the tree tax is rent within the meaning of S. 3(11) of the Estates Land Act, the learned judge went on to observe as follows:
"This, however, does not dispose of the matter because the tenants claim that the trees were planted by themselves and that they are therefore free to enjoy them as they please under S-12 of the Act. Whether the landholder is entitled to levy rent for the trees must depend upon whether they were in existence prior to the year 1908, a question which will have to be decided by the trial court."
No doubt there is not much of discussion or reasoning, but I agree with this view. In my opinion this view follows straight from the language of S. 13 of the Act (vide also the decision of King J. in -- 'S. A. No. 266 etc. of 1938 (Mad) (I)'. I therefore agree with the learned District Judge that the defendant ryots are not liable to pay any tax for the trees on their holding which have either been planted by them or which have grown spontaneously on the holding subsequent to the passing of Madras Act 1 of 1908.
7. Now remain the pre-1903 trees, and I understand from learned counsel for the appellant that a majority of the trees in these cases fall under this class. Fortunately for the landholder there appears to be reliable evidence of trees which were in existence on the several holdings in 1908 and before. There is also evidence as to the trees in respect of which the tax is now being claimed. The question with which naturally the courts below were faced was how to ascertain if the trees now in existence were all trees which were in existence on the date of the passing of the Estates Land Act of 1908. The courts therefore sought to devise a working formula having regard to the circumstances of the case and the incidents of the custom which they had found was well established. After carefully going through the Judgments of the courts below, I am free to confess that the scheme which they have worked out appears to be sub-stantially just and proper. I have, however been persuaded by the learned Counsel for the appellant to make a slight modification in one or two respects.
8. In understanding the formula arrived at by the lower appellate court, it is necessary to state that the palmyra trees which are the subject matter of the tax are divided into six classes:
(1) Peeli (sprouts)
(2) Kuthuvadali (very young plants)
(3) Vadali (young trees)
(4) Tarisse (grown up trees)
(5) Kattu (trees fit for tapping) and
(6) Paruvam (fruit bearing trees)
9. It is common ground that trees in the first two classes are not taxed at all, while trees in the remaining four classes are taxed at varying rates, the highest in the scale being the trees in the sixth class. The learned District Judge, in modification of the trial court's formula, laid down his scheme as follows:
(1) In cases in which the number of trees of all classes in the year 1908 is less than the number of trees of the classes 5 and 6 in the year 1935, then only the number of the trees in 1908 were liable to be taxed. No exception can be taken to this. It is obvious that if the number of trees now in classes 5 and 6 are more than all the trees in 1908, then obviously, the remaining must have been trees which came into existence after 1908.
(2) If the number of trees existing in 1908 is equal to the number of trees in classes 5 and 8 in the year 1935, then such number would be the number of trees liable to be taxed. Here it is objected on behalf of the appellant that the teat is not quite proper for this reason. It is said that the trees which fell, say, in class 1 or 2 in 1908 would remain in classes 3 and 4 in the year 1935 and might not have reached classes 5 and 6 and so it would not be equitable to exclude the trees in classes 3 and 4 in the year L1935 and it is only' if in taking the trees hi classes 3, 4, 5 and 6 their number is equal to the number of trees of all classes hi 1908 that the same number could be adopted. I do not think that there is any force in this contention so far as trees in class 3 in the year 1935 are concerned. It is only the young trees which are grouped in class 3, trees which are probably 10 to 15 years old. Now, it cannot be said that trees of this age in 1935 could have existed in 1903. So they cannot be taken into account. I am not so certain, however, about the trees in class 4. There is evidence that the trees which would reach such maturity as to be included in class 4 would continue to remain in class 4 for several years before they could be put in class 5 or 6. I am inclined to agree with this, and therefore I hold that in case the total number of trees of all classes--and whenever I say trees of all classes, I include not only trees which. were taxable in 1908 but also trees in the first two classes which were not taxable but which however were in existence-- is the same as the total of the trees in classes 4, 5 and 6 in the year 1935, then the number of such trees is liable to' be taxed.
(3) Then, as regards the other contingency of the number of trees in 1908 being greater than the number of trees in 1935, here again, the trees in. what classes should be taken into account is the question. The learned District Judge took into account only the trees in classes 5 and 6. For the reasons stated immediately above, I think here again the trees in class 4 also should be taken into account. If the number of trees in 1908 is greater than the number of trees in classes 4, 5 and 6 in 1935, then the number of the latter alone is taxable. I quite realise that there is a certain amount of arbitrariness about this division. But that is inevitable. I believe that this is the fairest solution possible without negativing to any large extent the rights of both the parties. In accordance with this formula the rights of the landholder should be worked out. The appellant shall file a separate statement in respect of each suit on the basis of this judgment.
10. In the result these second appeals are allowed in part to the extent indicated above. The appellant will be entitled only to the Court-fee and the printing expenses incurred by him from the respondent. Leave refused.