1. It is not necessary for us to consider whether we should be prepared to accept the finding of the Subordinate Judge on issue No. 5 for the reasons stated by the learned Judge in paragraph 8 of his judgment.
2. We are of opinion that there is no evidence from which, after the death of Subbarayadu, a tenancy from year to year as between plaintiff and defendants Nos. 2 and 3 can be inferred.
3. Even assuming that the plaintiff's distraint in September 1904 was in part for rent for Fasli 1314,--and this is not clear--the plaintiff's case was that Subbarayadu's interest in the lands in question passed on Subbarayadu's death to his widow, the 1st defendant, by inheritance and not to defendants Nos. 2 and 3 by survivorship. He gave notice of distraint to the widow in September and in October 1904, he took a muchilika from the widow on this footing.
4. Assuming, for the purposes of this case, that the finding of the Subordinate Judge that Subbarayadu's family is undivided was right, the family, after the expiry of Fasli 1313 were tenants on sufferance, and there is no evidence of any assent by the plaintiff to the conversion of this tenancy as between her and defendants Nos. 2 and 3 into a tenancy from year to year. See Vadapalli Narasimham v. Dhronaraju Seetharama Murti 31 M. 163 : 3 M.L.T. 256 : 18 M.L.J. 26.
5. As regards the question of occupancy right with reference to Section 6 of the Madras Estates Land Act I of 1908, which Mr. Sundara Aiyar desired to argue on behalf of the appellants, we intimated to him that it was not likely we should take a different view from that taken by us in Appeals Nos. 197 of 1905 and 174 of 1905 where the question was fully argued by Mr. Seshagiri Aiyar, and on this intimation, Mr. Sundara Aiyar said he would not argue the point. The question of occupancy right, apart from Section 6 of the new Act, was not raised before us.
6. We think the decree of the Subordinate Judge must be upheld on the ground that the plaintiff was entitled to succeed in the suit for ejectment as against defendants Nos. 2 and 3 without giving them notice to quit. The 1st defendant does not appeal.
7. The appeal is dismissed with costs.