1. The first point argued by the learned Advocate General before me in this batch of second appeals is that the Estate's Land Act does not apply to the case. To understand this point it is necessary to set forth the history of the suit village. Exhibit D is a statement dated the 15th day of January 1873 initialed by Mr. Whiteside the then Collector of North Arcot. It is headed 'statement showing the particulars of shrotriem mole-am sarvamaniam villagers in the minor estate of Ami jaghir, North Arcot District.' It shows that the suit village of Rajammarpuram was granted by the then jaghirdar Thirumala Rao Saheb in Fasli 1211 to the ancestor of the defendant's vendor K. Krishna Rao. The grantee seems to have applied that certain lands may be given to him on cowle tenure for constructing a tank and building a village. The suit-village was granted to him and for the first- two years after the grant, no assessment was fixed. It was said that the assessment will be fixed after two years. In Fasli 1215 he submitted accounts and requested that 50 pagodas may be fixed on it as mutka (rent) and it was accordingly fixed. Afterwards a document was issued to his son Madhava Rao in Fasli 1233 which states that the beriz was reduced to 10 pagodas. So far the statements in column 19 of Ex. D suggest that the village was granted to a ryot for rent. The document then proceeds to say The inam appears to have been granted sub-sequent to paimash. In 1223 the grantee represented that the ryots were very poor and the rent should be reduced. Accordingly 40 pagodas were permanently remitted. It will be safe to continue the grant which evidently falls within the scope of Section 15 of Regulation XXX of 1802. From the reference to Section 15 of Regulation XXX of 1802, the Advocate-General argues that the whole transaction was one of leasing to a ryot that the so-called grantee Krishna Rao and his son Madhava Rao Were merely ryots under the Arni jaghirdar and the defendant who is the descendant of the original, grantees a ryot under the Arni jaghirdar and the plaintiffs are under-tenants to whom the Estates Land Act does not, apply. If the defendant is not a ryot under the jaghirdar of Arni but is himself regarded as a land-holder, his position would then be that of one who is generally and loosely described as a subsequent inamdar. If he is a subsequent inamdar, the matter is not open, to me for discussion though I confess I am inclined to agree with the view of Wallis, C.J. in (Jadadhava Das v. Suryanarayan Putnaik 14 L.W. 453 and of Schawbe, C.J., and Devadoss, J., in Brahmayya v. Achiraju 43 M.L.J. 229 : A.I.R. 1922 Mad. 373 . So far as this High Court is concerned, the matter is now settled by the majority of the Full Bench against an-inamdar and I am bound by it. Where a grantee pays some kind of rent to the zemindar whether he should be regarded as a subsequent inamdar and, therefore, a. land-holder to whom the Estates Land Act should apply as between him and his tenant or whether he should be regarded as a ryot under the zemindar paying rent to him, the Estates Land Act applying to his relations with the zemindar but not as be-tween him and his under-tenants (Section 19 of the Act) must always be a difficult question to decide in the application of the Full Bench decision. In this state of the authorities, if there is nothing else in the case, the matter would no doubt be a somewhat difficult point to decide but the pleadings in the case make my task lighter and the position of the appellant more difficult. The suit was brought under Section 112 of the Estates Land Act. The defendant was described as a shrotriemdar. Even mokasa Ex. D purports to be a list of shrotriem sarvamaniam villagers and a mere cultivate ing ryot cannot get into such a document. Paragraph 4 of the plaint says:-- 'The plaintiffs and others have been paying to the defendant's predecessors kist at the said rate from time out of memory and the lands comprised in pattah No. 34 as ryoti lands'. This is not denied in the written statement; on the other hand para. 5 of the written statement refers to the plaintiff and other ryots of the village. So also para. 7. In para. 10 of his written statement defendant' pleads that he is entitled to levy the premium under the Estates Land Act. Paragraph 11 refers to plaintiffs and other ryots of the village. Paragraph 12 says that the suit is barred by limitation under Schedule A serial No. 5 under Section 55 of the Madras Estates Land Act. No plea is taken in the written statement; no issue-raised as to the maintainability of the suits. In the course of the arguments before the Deputy Collector, the defendant seems to have argued that he possessed occupancy right over the lands of the shro-triem. The Deputy Collector meets his argument by referring to the judgment in Summary Suits Nos. 53 to 97 of 1915 on the file of the Divisional Officer, Vellore, (Ex. I) which held that the ryots of the village held occupancy rights and which also shows that the District Munsif before whom the suits were originally filed returned them for presentation before the Revenue Divisional Officer oh the ground that the shrotriem was an estate under the Estates Land Act. Those suits were by a mortgagee of the defendant, the defendant himself not being a party to them. It may be that the Deputy Collector was not quite correct in regarding Ex. I as conclusive between the parties. The Deputy Collector then says 'When this position is arrived at, there is no more argument necessary to show that the defendant was not acting under Section : 53 of the Estates Land Act and that he was not allowed by the provisions of Section ; 46 of the Act to collect premium from the plaintiffs.' Up to this stage no question about the applicability of the Act seems to have been raised by the defendant, and even then the point raised by him was that he was the owner of both the varams and that the plaintiff had no occupancy right. There seems to have been a confusion of thought on the part of the defendant and of his legal advisers. The consideration that a person is the owner of both the varams is material in determining the applicability of the Estates Land Act, only where the land is a whole village and an enfranchised inam: vide Section 2, Clause (3)(d) of the Act. We have nothing to do with an enfranchised inam in this case. The suit land is part of the Arni estate. The only question is whether the defendant is himself a land-holder or whether he is a ryot under the jaghirdar and it is immaterial whether he was the owner of both melvaram and kudivaram prior to the suit, If he is a subsequent inamdar, even if he was at one time owner of both melwaram and kudivaram, that fact does not, make the act inapplicable as in the case of an enfranchised inam. But the defendant seems.to have thought up to the arrangement in 1919 under Ex. C he was the owners of both varams and, therefore, he had a right to take premium or charge enhanced rents though he is a subsequent inamdar and that Somehow some provisions of the Estates Land Act will not touch him. Still he seems to have thought that he was a land-holder under the Estates Land Act. In appeah also no question as to the appli-cability of the Estates Land Act seems to have been, raised. In second appeal, the point was, no doubt, expressly raised in grounds Nos. 2 to 8. The Advocate. General suggests that the defendant never meant to admit that the act was applicable to him up to the execution of Ex. C in 1919 and that the arrangement under Ex. C. itself was effected in consideration of the defendant admitting plaintiff's , occupancy rights and it may be that the defendant thought that after the conferring of the occupancy rights on the tenants under Ex. C, the village became an estate, but the District Judge points out in para. 3 of his judgment that the suggestion put forward by the defendant, namely, that Ex. C was executed; in consideration of defendant admitting occupancy rights of the tenant differed materially from the plea in the written statement. Anyhow the written statement does not deny the allegation in para. 4 of the plaint that the plaintiffs and others were enjoying the lands as ryoti lands and were paying hist to the defendant's predecessors from time out of memory. It is impossible to make out from defendant's written statement that they, ever meant to deny that that suit land was an estate prior to 1919 and to allege that it became an estate only after 1919. Thus with reference to the pleadings, I must hold it is not. open to the defendant now to contend that the Estates Land Act is not applicable as between him and the plaintiffs. I think there is also another ground on which this point must be decided against the appellant thought this was not suggested by the respondent's Vakil at the time of argument and there was no discussion on it at the Bar. The view taken by Wallis, C.J., in Gadadhard, Das v. Suryanarayana Patnaik 14 L.W. 453 and by Schawabe, C.J., and Devadoss, J., in Brahmayya v. Aahiraju 31 M.L.T. 91 : A.I.R. 1922 Mad. 373 F.B. can only apply-to minor subsequent inams, that is, the so-called subsequent inams which are not whole villages. Where the subsequent inam is a whole village held on a permanent under-tenure, the case must really fall under Section 2(3)(e) and there is no scope for a difference of opinion. In the present case though the suit village was carved out of another larger village, ever since 1801 it was regarded as a distinct and separate village. That being so, Clause (e) of Section 2(3) will apply. The first contention of the appellant must, therefore, be disallowed and the conclusion of the Courts below that the higher rent sought to be charged on the plaintiffs and other tenants under Ex. 0 is not binding on the ryots must stand.
2. The second point argued by the Advocate-General may now be stated. In 1919 the defendant and his ryots entered into an arrangement described in Ex. 0 by which from Fasli 1329 onwards, a rate of rent higher than the rate prevailing up to then was to be paid for the lands in the village and a lump sum of one year's rent according to the old rate was to be paid to the defendant. The sum was accordingly paid. In para. 6 of the plaint it was suggested that the payment was towards the rent for Fasli 1329. This was denied by the defendant who alleged it was in pursuance of Ex. C. The plaintiff took no issue on the point. The whole oral evidence set forth by the Divisional Officer shows it was in pursuance of Ex. 0 and his contention was that it was paid as a premium. Nor was any suggestion made before the District Judge that the payment was for rent for Fasli 1329. This payment was, therefore, obviously a premium and was so regarded by the Divisional Officer, though its purpose seems to have been to enable the defendant to make certain improvements to the village tank. Whatever the purpose might have been, the defendant was not entitled to collect it under Section 46 of the Act. The plaintiff and the other ryots were entitled to recover it from him if they filed a suit within six months from the date of the collection. (Schedule, A part II, item No. 15). In this suit, there is no prayer for the recovery of that amount. Even if there is a prayer, it would have been barred.
3. But the plaintiff alleged in para. 7 of the plaint that the defendant is liable to have the amount credited from the rent for Fasli 1329, but there is no prayer asking for such a credit in para. II of the plaint. In the view I take, the absence of a prayer is immaterial. If the suit had been filed within six months after payment, the plaintiffs might be granted a declaration that the amount paid by the ryots might be credited towards the rent for Fasli 1329. But the suits were not filed within six months after payment. To compel the defendant to credit it towards the rent of Fasli 1329 is the same as taking back the amount from him on the ground of an illegal collection and then repaying it to him under the heading of rent. This process is not permissible as it cannot be recovered from him on account of the bar 'of six months. The Deputy Collector did not discuss the point. It is a point which arose only on the fourth issue after his findings on the first and second issues are known. Accepting his finding on the first and second issues that the patlahs for enhanced rents are not valid, the question arises whether the pattahs should not be held to be valid for the rents properly payable according to plaintiff's contentions, and, if so, whether the sale notices should be held valid to that extent. Vide Section 53, Clause (2). The point was raised before the District Judge by the defendant and the District Judge disallowed it on grounds which are not intelligible to me. The Judge says 'The payments cannot be regarded as illegal exactions in addition to the rents lawfully payable. They were made by plaintiffs in ignorance of their legal rights.' I am not able to understand how, because the plaintiffs made the payments in ignorance of their legal rights and the defendant obtained the payment taking advantage of the ignorance, the payment is other than an illegal payment falling under Section 144 of the Act. It was not paid as rent. It was paid as something else. Defendant was not entitled to it; it was, therefore, an illegal exaction The plaintiffs ought to have sued for it within six months. Their right to recover it is barred. They are, therefore, bound to pay the rents for Fasli 1329 and the sale notices to set aside which the suits are filed under Section 112 of the Act are partly valid and partly invalid. See Section 52(3) of the Estates Land Act.
4. I, therefore, modify the decrees of the Courts below by declaring that the sale notices issued by the defendant are invalid in so far as the excess rent charged under Ex. X is concerned, but are valid in so far as they cover the rent previously payable by the ryots.
5. The parties will bear their own costs throughout.