ORDER
1. The District Munsif states that the mulgar and the mulgenidar are jointly entered in the register as patttadars. The District Judge says that the mulgar is the pattadar and this seams to be supported by exhibit D. It is strongly contended before us that the mulgenidar alone is the pattadar, and the patta exhibit B as translated to us, seems to bear this interpretation. We must ask the District Judge to enquire and report who is, in fact, the registered pattadar,
2. Fresh evidence may, if necessary, be taken on both sides on this question. The report should be submitted within one month and seven days will be allowed for filing objections.
3. In compliance with the above order, the District Judge of South Canara submitted the following
4. Report.--Plaintiff, mulgar, sued his mulgeni tenant to make the latter pay the enhanced revenue on the holding. He failed both originally and on appeal.
5. On second appeal, I am asked to enquire and report who is In fact the registered pattadar of the holding. This reference seems to be due to the patta having been mistranslated in the High Court. If; is given in the printed paper as patta granted to No. 10 pattadar, Uggaai Hengsu, mulgenidar of Krishnapura-swami, The true rendering is patta given to No. 10 pattadar Krishnapuraswami, mulgenidar Uggani Hengsu.
6. It is true that between the words ' Krishnapuraswami' and mulgenidar' comes in a latter that no one can read. In exhibits E and D which are part II of the patta, the entry reads No. 10 pattadar Krishnapuraswami mulgenidar Uggani Hengasu. The entries do not make the mulgenidar the pattadar, They describe Kriahnapuraswami--that is, present plaintiff--as pattadar No. 10 and add a sort of note that the mulgenidar is defendant. This is the usual custom. Government declined to settle how the mulgar --mulgenidars' disputes should be decided and consequently in all or nearly all cases of mulgeni, sort of joint pattas have been issued, in which the mulgar is entered as the pattadar and the 'mulgenidar ' is added as a kind of note. This does not make the mulgenidar also a registered landholder under Government, because the mulgar is that--and the mulgenidar's holding is by express and eternal contract under the mulgar and not under Government.-The only effect of the note is to register the mulgenidar in a way that really serves no purpose. It cannot be argued that the entry of the two names makes them joint pattadars in the ordinary sense of the term, whereby both are jointly and severally liable to the State for the revenue, because the same entry that records the two names records that one is the landowner and the other only his tenant.
7. I therefore find that in this case, as in all such oases, plaintiff is the registered pattadar. Defendant's name is merely entered on the patta as the mulgeni tenant under plaintiff.
8. This second appeal coming on for final hearing after the return of the above report, the Court delivered the following judgments.
Benson, J.
9. In this case the question for decision is whether the defendant, who is the holder of certain land on mulgeni tenure in South Canara, under the plaintiff, who is the mulgar, is bound to pay the whole or any part of the increased assessment imposed upon the land by Government at the recent resettlement of the district. The question is of great general importance as the mulgeni tenure is very common in South Canara, and in some cases the increase in the assessment is more than the whole rent reserved to the mulgar, so that if the whole inorease of assessment is thrown on the mulgar alone, ha will cease to derive any' benefit at all from the land, except such as may arise from a remote reversionary interest. The plaintiff who is the mulgar, is the holder under Government of an estate, or warg, consisting A of various portions of land. Under the old revenue settlement of 1819 such estates in South Canara were liable 50 pay a lump sum as assessment on the whole estate, instead of having an assessment fixed on each field or portion of the estate as is usual in other parts of this presidency. In 1870, the plaintiff granted to the defendant a portion of this land on a perpetual lease (mulgeni chit), exhibit A, the terms of which are as follows:
Forty-six field plots of the seed area of 63/4 mudis, total bail, majal, bettu of the total seed area of 10 mudis, 52 fruit bearing coconut trees, 4 plants, 1 jack, 1 hebbalasu tree, 5 honne, 3 palmyras, 6 tamarind and sundry trees, built house, cowhouse, outhouse, tank, well, etc., for which Rs. 95 in cash; Rs. 2 for road case total Rs. 97--ninety-seven are fixed, which sum you shall pay yearly to the treasury within Palguna Bahula 30 of each year from this year onward and get receipt. You may effect improvements on the said property and enjoy from generation to generation. Neither the mutt has reason to ask for more rent than that hereby fixed, nor you that the rent should be lessened, Not only will you deliver up the land at the time when you do not want them (on taking the improvements which respectable persons (sic) value from the treasury if any improvements have bean effected thereon) but you have no reason to alienate to anybody in any manner, your rights on the security of this instrument. If the rent is in arrears by not being paid within the time above described you must pay it with interest at 12 per cent, after the time, you shall also give two vegetable loads and compulsory labour (bitti) in the same manner as for tenants conduct themselves. Except the cutting of fuel and leaf for purposes of cultivation of the land. You cannot disfigure the land by cutting down prohibited trees, etc. To such effect is the mulgeni chit executed.
10. It will be observed that this document does not make any reference to the Government assessment, or as to who is to pay it.
11. As a matter of fact there was no separata assessment of revenue on the portion alienated, and the plaintiff continued to pay Government the assessment on the whole warg after the grant of the mulgeni, just as he did before the grant. But in the recent settlement of the district the assessment was largely increased and it was fixed on each field and a separate patta (exhibit B) was issued in respect of the land held by the defendant under his mulgeni lease in which the assessment on this land was fixed at Rs. 48-5-0 per annum.
12. There was a dispute before us as to who is the pattadar in exhibit B and therefore the 'landholder' under Section 1 of the Revenue Recovery Act II of 1864, and bound to pay the revenue to Government under Section 3 of the Act, as held in the recent Full Bench case of Subramania Chetty v. Mahalingasami I.L.R. (1910) Mad. 41.
13. As the document was translated to us, the defendant (mulgeni-dar) appeared to be the pattadar; but the District Judge had stated that the plaintiff (mulgar) was the pattadar though the defendant's name was shown in the patta as mulgenidar, and the District Munsif had stated that the patta 'stands in the name of both the plaint mutt and the mulgeni tenant, and, therefore, so far as the Government is concerned, the mulgeni tenant is as much bound to pay the assessment as the mutt. As between the landlord and the tenant the question is one of contribution.'
14. In this state of things we referred an issue to the District Judge to decide who is, in tact, the registered pattadar. His finding is that according to the true translation of exhibit B the plaintiff--mulgar--is the pattadar and that the entry relating to the defendant--mulgenidar--is not to the effect that he is the pattadar, or even a joint pattadar with the plaintiff in the ordinary sense, but merely the mulgeni tenant under the plaintiff as landlord. Objection has been taken before us to this construction of the patta, but we are satisfied that it is the true construction. It is therefore not necessary for us to consider whether Government could legally grant a patta to the mulgenidar solely or jointly with the mulgar, on the ground that the mulgenidar now has a larger interest in the land than the mulgar.
15. The plaintiff being the pattadar, and the defendant being his tenant, and having paid the revenue due on the land in exhibit A, the defendant is entitled to recover the same from the plaintiff in accordance with the provisions of Section 35 of the Revenue Recovery Act II of 1864, which enacts that it shall be lawful for any person claiming an interest in land which has been, or is about to be, attached, to obtain its release by paying the arrears of revenue, and adds that 'all such sums, if paid by a tenant may be deducted from any rent then or afterwards due by him to the defaulter.'
16. If the plaintiff ware allowed to succeed in the present suit he would deprive the defendant of the right secured to him by this provision of law. On this short ground the appeal must fail.
17. But in the argument before us the effect of Section 35 was hardly at all considered. Both sides argued the appeal on general principles and with reference to what would be equitable apart from Section 35. In view of the hardship which the new settlement has caused to many of the mulgenidars, and the possibility that the matter may be the subject of legislation, I will now refer to those arguments.
18. The plaintiff's vakil contended before us that the whole of the increase over what may be called the old assessment should be borne by the defendant or that the increase should at least be shared between the plaintiff and the defendant in proportion to the benefit which each derives from the land. He based this claim mainly on the contention that the defendant under the terms of exhibit A is in fact the beneficial owner of the land subject to a fixed perpetual rent charge in the plaintiff's favour, and that the plaintiff is in the position of a person who has only such a charge.
19. I am unable to accede to this contention. The respective interests of the mulgars and mulgenidars are well described in Sturrock's Manual of the District, page 130, volume I, in these terms: The mulgeni or permanent lease is of very old standing in Canara and is described as follows in the proceedings of the Board of Revenue, dated 5th January 1818:
The mulgenigars or permanent tenants of Canara were a class of people unknown to Malabar who on condition of the payment of a specified invariable rent to the muli or landlord and his successors, obtained from him a perpetual grant of a certain portion of land to be held by them and their heirs for ever. This right could not be sold by the mulgenigar or his heirs, but it might be mortgaged by them and so long as the stipulated rent continued to be duly paid, he and his descendants inherited this land like any other part of their hereditary property. The landlord and his heirs were precluded from raising the rent of the permanent lessee. It was, therefore, originally either higher 'than that procurable from temporary tenants, or it was fixed at the same or at a lower rate in consideration of a certain sum' being paid as premium or purchase money for the grant in perpetuity, or as a favour conferred by the landlord, on some of his dependents. It amounted in fact to a permanent alienation of a certain portion of land by the landlord, for it never 'again lapsed to him or his descendants except on the failure of 'heirs to the permanent lessee. This class of people may, therefore, be considered subordinate landlords rather than tenants,' especially as, though many of them cultivated their lands by 'hired labourers or slaves, others, sub-rented them to chalginigars' or temporary tenants.
20. The mulgeni of the present day differs but little from that above described. In some cases sale is allowed as well as mortgage, but in others, and probably in the majority of mulgeni leases now executed, the lessee's powers of alienation are much restricted, and forfeiture of the lease is provided for non-payment of rent, for waste, or for unauthorized alienation. As a set off against the forfeiture for alienation, it is provided that, if the-lessee desires to give up the land, he shall do so to the lessor, receiving from him the value of any improvements that may have been made. In some cases a premium is paid in addition to the rent reserved.
21. It will be observed that under the terms of exhibit A the defendant is restrained from alienation, and even from cutting wood, except for limited purposes; and under the customary or common law of the district, the plaintiff appears to have the reversionary interest in the land on failure of heirs to the mulgenidar. Both the plaintiff and the defendant have interests in the land, and those interests are defined partly by the terms of the contract between them, exhibit A, and partly by the incidents which the customary law attaches to the tenure.
22. I cannot on the other hand accept the defendant's contention that under the terms of exhibit A the plaintiff is bound to pay the whole of the increase in the assessment imposed by Government.
23. Exhibit A contains no provision for the contingency that has -arisen, and there is no reason to suppose that either party in 1870 at all contemplated that contingency.
24. It must be remembered that from the date of 'the tharao settlement' in 1819 no change had' ever been made by Government in the assessment then fixed on the various wargs throughout the district. It had remained unchanged for fifty years and there is no indication in exhibit A that either party to it contemplated the possibility of an enhancement of the assessment. The fact that the plaintiff had always paid the then existing assessment on the warg and made no provision for transferring to the mulgenidar any increase that might be imposed in future by Government cannot in the circumstances of this case be taken to indicate an implied contract that the plaintiff would pay such increase.
25. In the recent case of Mahanand Sahai v. Mussamat Sayedunissa Bibi 12 C.W.N. 154, the perpetual lease granted by a zamindar to his tenant provided for the rent in these terms: 'At varying jamas, to wit, on an annual uniform jama of Rs. 1,580 from 1289 to 1291 (fasli) and at an annual uniform consolidated jama of Rs. 1,585 of the current coin from 1292 (fasli) together with abwab, such as, selami for Dasserah and Holi, Purkha, Sair, Road cess, Public works cess, etc., all of which are included in that very sum of Rs. 1,585.' The High Court of Calcutta held that 'the contract did not provide that if the cesses were increased in future the additional burden should fall upon the landlord. The only reasonable interpretation of which the covenant in question is capable is that the amount annually payable by the tenant, namely, Rs. 1,585 included abwabs, Road cess and Public works cess. No doubt it was a consolidated amount, but the contract does not provide for the contingency which has happened, namely, an increase in the amount of cesses levied by the State,'
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The clause in question in the lease now before us seems, therefore, to imply nothing more than this, that Rs. 1,585 was the total amount inclusive of abwabs and cesses. There is nothing to show that the parties contemplated a possible increase in the amount of cesses leviable by Government, and they do not appear to have provided for this particular contingency. If so, the obvious result is that the rights and liabilities of the parties must be regulated by the statute only, except in so far as the contract has made provision to the contrary.
26. In the case before us the contract between the parties does not provide, nor has Government directly declared by law, how the increased assessment is to be distributed between the mulgar and the mulgenidar or other parsons interested in the land though Section 35 of the Revenue Recovery Act does, as we have seen, indirectly, and as it were unintentionally, impose the whole burden on the pattadar.
27. Before considering how the enhanced assessment ought, in accordance with principle, to be distributed between the mulgar and mulgenidar, I may refer briefly to the cases relied on by the defendant as supporting his construction of exhibit A. Those cases are Babshetti v. Venkataramanai I.L.R. (1879) Bom. 154 and Ranga v. Suba Hegde I.L.R. (1880) Bom. 473. These cases were followed, but without discussion, by a Bench of this Court in Gummana Chetty v. Abdu Beari S.A. No. 1245 of 1907 (unreported) .
28. In the earlier of the Bombay cases the terms of the mulgeni chit are not set forth, but it is stated that 'the plaintiff's claim may properly be regarded as one to recover arrears of rent at a rate exceeding that engaged for in the kabulayat by the same sum that the Government assessment which the plaintiff himself now has to pay exceeds what he paid when the mulgeni contract was made' (p. 157), and this claim was negatived on the ground that the rant was fixed by the terms of the contract.
29. The later of the Bombay cases treated the question as settled by the authority of the earlier case.
30. It may, I think, be doubted whether these cases apply to the present case, for the claim of the plaintiff in the present case cannot, in my opinion, be properly regarded as a claim for an enhanced rent. The rent has been fixed by the contract (exhibit A), but the imposition of an higher assessment by Government is a matter outside the terms of the contract altogether and is not provided for in it either expressly or impliedly.
31. The assessment has nothing to do with the rent. The plaintiff does not seek to recover it as rent, though he prays that the defendant may be declared to be liable to pay it along with the rent, this being no doubt a matter of convenience. The proper view appears to be that a harden has been unexpectedly thrown on the land by the Government, and the question is how this burden ought to be distributed between the persons interested in the land. This aspect of the question was not considered in the two Bombay cases. The theory on which the land assessment is fixed in this Presidency is that the Government is entitled to a certain share of the produce of the land, and the money assessment is the value of that share. When an enhanced assessment is imposed it is usually due to an increase in the money value (or price) of the produce, or it may be due to increased productiveness of the land, improvement of communications and opening up of new markets, or because the former assessment was for any reason too low (Standing Orders of the Board of Revenue, Chapter I, Part I, Standing Order 1).
32. In the present case the plaintiff alleged that the increase of assessment was due to improvements made by the defendant and argue that for this reason the defendant should pay the increased assessment or at least so much of it as was due to the improvements. The District Munsif, however, found that the increase was not due to the tenant improvements and I may say that it would ordinarily be difficult to prove that the whole or any definite part of the increase is due to such improvements since the Settlement department, as I understand, does not ordinarily tax such improvements but takes into consideration a great variety of other circumstances in fixing the assessment, and deals with large tracts of country rather than individual fields (Standing Orders of the Board of Revenue, Chapter I, Part I, Standing Order 1).
33. Even if a part of the increased assessment were due to the defendant's improvements, I doubt whether this should absolve the plaintiff from all liability in respect of such part, since his reversionary interest would have been rendered more valuable by the improvements effected and it would be reasonable that on this account he should bear a part of the increased assessment resulting from the improvements. I have said that the assessment is a burden imposed by Government on the land, and I think that this is the correct view since the assessment represents a share of the produce of the land, and under the Revenue Recovery Act II of 1864, Section 2 'the land, the buildings upon it, and its products, shall be regarded as the security of the public revenue.'
34. As stated by Mr. Baden Powell 'In Madras the system (of Revenue Settlement) does not involve the preliminary determination of any person to be the 'proprietor' and to accept the settlement terms: it goes straight to the land, and determines, according to its own rules and principles, what that field or survey unit ought to pay, no matter who holds it.' (Land System of British India, page 33, Volume III.) It follows that in the absence of a contract to the contrary express or implied the burden should be shared inter se by the persons interested in the land in proportion to their respective interests, that is in proportion to the benefit which each derived from the land. This was the conclusion recently arrived at by a Bench (Miller and' Sankaran-Nair, JJ.) of this Court in a very similar case from the same district (Venkappayya v. Rukku Hengsu S.A. No. S82 of 1908 (unreported) in which, however, no reference was made to the effect of Section 35 of the Act) and it is the principle adopted in the English Land Tax Act. As observed by Vadghan Williams, L.J., in Mansfield v. Relf (1908) 1 K.B. 71 'under the Land Tax Act, irrespective of any covenant on the subject, the incidence of land tax on the persons interested in land is intended to be proportionate to the benefit which they respectively derive from the land, whether in the shape of rent or occupation.'
35. In the present case we have found that there was no contract, express or implied, between the plaintiff and defendant as to how the increased assessment should be borne. It ought therefore, in accordance with principle, to be shared between them in proportion to the benefit which each derives from the land, but having regard to Section 35 of the Act we cannot give effect to this view and must dismiss this second appeal with costs,
Wallis, J.
36. In 1871 the plaintiff demised the suit lands on a perpetual lease to the defendant at a fixed rent under exhibit A. None the less he still continued to be the proprietor of the lands --See the recent decision of the Privy Council in Abhiram Gosivami v. Shyama Charan Nandi I.L.R. (1909) Cal. 1003 and therefore, as will be shown, he also continued to be the 'landholder,' as defined in the Revenue Recovery Act, of these and the other lands comprised in the warg and to be liable for the assessment fixed on the warg, and if such assessment was allowed to fall into arrears and was paid by the tenant the defendant, the defendant was entitled to deduct the sums so paid from any rent then or afterwards due to the plaintiff under Section 35 of the Act. Thus the tenant did not by the terms of his contract undertake to contribute to the assessment, but only to pay the fixed rent in consideration of which he was to | be entitled to the enjoyment of the premises, and the law on the other hand entitled him to deduct from such fixed rent any assessment he had to pay to prevent the demised land from being sold for arrears of revenue. It may, I think, be inferred in the peculiar circumstances of South Canara where these lands are situated, that neither the plaintiff nor the defendant at the time of entering into the lease contemplated the eventuality of an increase in the assessment, but I cannot see how a subsequent increase contrary to the expectation of the parties can affect the right of the tenant to enjoy the premises at the stipulated rent, or deprive him of the right conferred upon him by Section 35 of deducting any assessment he has to pay from the rent payable to the plaintiff. The plaintiff is undoubtedly the proprietor of the lands and as such is the person to be registered under Section 2 of Regulation XXVI of 1802, and there can, I think, be equally little doubt that the registered proprietor is the 'landholder' within the meaning of the Revenue Recovery Act. This was expressly decided by this Court after full consideration in Secretary of State v. Ashtamurthi I.L.R. (1890) Mad. 89 and the legislature accepting and acting on that decision proceeded to pass Madras Act III of 1896 In Malabar as recited-in that Act, landed property had in many cases not been registered in the names of the proprietors thereof and it was therefore thought proper to provide a summary means of ascertaining who these proprietors were so that the land might be registered in their names. Section 13 provides that the proprietor ascertained in this summary manner and registered as such 'shall be deemed to be the 'landholder' in respect of such estate within the meaning and for the purposes of the Madras Revenue Recovery Act, II of 1864, and no proceedings taken under the said Act against such person or against any lands registered in his name shall be deemed invalid or ineffectual by reason of any error in such registration or on the ground that such person was not the real or sole proprietor.' The legislature could not well have indicated more clearly that the proprietor is the landholder within the' meaning of Act II of 1864. In these circumstances it seems to me clear that the plaintiff being the proprietor and having been registered as such and revenue collected from him as landowner, Government could not, if so minded afterwards, transfer the status of landholder to the tenant. I say this because it was suggested in the present case that the patta which has been put in evidence should be read as issued to the defendant and not to the plaintiff. It has now been ascertained that this is not so, but, even if it had been, I do not think the issue of a patta to the defendant would have the legal effect of making the defendant the landholder instead of the plaintiff. I may observe further that whatever was done in this case the Government Order settling the terms of resettlement which was read to us during the argument directs the pattas to be issued to the wargdars---obviously the correct course. In the Secretary of State v. Fernandesi I.L.R. (1907) Mad. 375 to which I was a party the question whether the Government could by an executive act convert inulgeni tenants into landholders was raised though it was not necessary to decide it and the subsequent discussion has only served to confirm me in the opinion that Government has no such power. I also see no reason to differ from the decisions in Babshetti v. Venkatramana I.L.R. (1879) Bom. 154 and in Ranga v. Suba Hegde I.L.R. (1880) Bom. 473 which in my opinion are on all fours with the present case. It is true that the question whether the Court could treat the increased assessment as the imposition upon the land of a new charge not contemplated in the contract and apportion it between the parties interested was not in terms raised or considered in these cases. That of course would be the most equitable way of dealing with the question and I should be glad to see it dealt with by the legislature on these lines, but it is not open to the Court, in my opinion, to do this as it would be opposed to the provisions of Section 35 of the Revenue Recovery Act. I am therefore of opinion that the District Judge was right and that the appeal should be dismissed with costs.
Krishnaswami Ayyar, J.
37. I agree in the judgment of Mr. Justice Benson. Section 35 of Act II of 1864 appears to me to be decisive. I express no opinion on the question whether it is' competent to Government to give a ryotwari patta to any one other than the proprietor of the land having only a subordinate interest in it.