JUDGMENT
1. The only important question raised in this appeal is whether the learned District Judge has correctly appreciated the scope of Section 40 of the Madras Estates Land Act: and in particular whether he was right in excluding from consideration the question of whether the rents actually collected during the decennial period before suit were in excess of what was legally clue.
2. The Deputy Collector found that the proper rent payable was a varam of half the gross produce, which gross produce he calculated to be 17 1/2 putties per acre. Applying to this, the average market value which he calculated to be Rs. 57-3-2 per garce of paddy, he arrived at a rate of rent of Rs. 12-0-0 and 13-0-0 per acre (for different villages) or Rs. 38 and Rs. 39-0-0 per garce, a garce, as regards area, being take a to be equal to 3 acres.
3. The District Judge, on the other hand, has declined to hear arguments as to whether the rent has been illegally or as the Deputy Collector puts it “whimsically” enhanced, and has simply applied an average market value of Rs. 65-0-0 per garce of paddy to the grain rents actually collected in the course of the ten years preceding the suit.
4. With the question of whether Rs. 57-3-2 or Rs. 66-0-0 is the proper commutation rate (using the term in the strict sense) we are not now concerned. The only question is whether the District Judge was right in declining to consider whether the grain rent actually paid exceeded what was legally due: and this depends on the interpretation of Section 40 of the Madras Estates Land Act.
5. The section is headed” Communication of rent;” and the narrower interpretation (to which the learned District Judge is inclined) is that it provides for nothing more than the conversion practically by an arithmetical process, into a fixed annual cash payment of grain rents or rents varying with the crop. The District Judge says ” Section 40 does not in my opinion contemplate anything in the nature of a settlement of new rates of rent, but merely the ascertainment of new rates of rent fairly and reason ably equivalent to the grain rents actually in force.
6. The word “commutation” read by itself is certainly suggestive of this meaning : and we are bound to say that the section does not appear to have been happily worded or to be altogether free from doubt- There seems moreover, to be no authority on the point. But on reading the section as a whole we are forced to the conclusion that it was intended to cover something more than a mere arithmetical calculation of averages or application of a market price to commute grain into money. The term “settlement of new rates of rent” used by the District Judge rather lends itself to misinterpretation in the other directions: and we are not to be understood as saying that the method adopted by the Deputy Collector was proper. But the mere presence of Clauses 3(b) and 3(c) is sufficient indication that something more than commutation in the narrowest sense was contemplated. The learned District Judge himself clearly feels the difficulty. He says Clause (b) of Sub-section (3) provides data for purpose of comparison. But the existence of such a standard of comparison indicates that it should be capable of being acted on. The section directs the attention of the Collector to Clause (b) equally with Clause (a) and the District Judge is driven to allow that the two clauses may “provide two limits within which the courts are at liberty in the exercise of reasonable and judicial discretion to fix the definite money rental required to be determined.
7. Clause (c) is equally significant. It direcbs the Collector to have regard to “improvements effected by the land-holder or the ryot in respect of the holding and the rules laid down by Section 32.
8. Now improvements effected by the ryot cannot affect the rent: and the only possible meaning of the reference to them is that where a higher rent has actually been collected on account of them, matters should be set right by the Collector “in making the determination.” Similarly with improvements effected by the land-holder, the meaning can only be that effect is to be given to the provisions of Section 32, if these would entitle him to a higher rent than the average ascertained under Clause (a).
9. It seems clear to us that the Collector in determining the rent to be paid is not intended to confine his attention simply to ascertaining the rent actually paid year by year and the proper, market value of grain at the time of each harvest; but is authorized and directed to have regard to other considerations.
10. It is argued in support of this narrower interpretation of Section 40 that Chapter XI sufficiently provides for the determination of anything more than a mere commutation of grain into money. But that chapter provides no remedy for an individual ryot: and even where a sufficiently large proportion of land-holders or ryot3 apply, it is optional with Government to take action.
11. In the present case, there are no improvements to be considered under Clause (c) and we must accept the finding of the District Judge that the data available are not sufficiently reliable to render it possible to compare the rates arrived at under Clause (a) with the rates paid for similar lands in the same or neighboring villages under Clause (b).
12. But it seems to us he was bound to consider the ryots’ plea that the rents actually levied during the decennial period were in excess of what was legally due. It is argued that Section 40 makes no provision for this. But as we have seen Sub-section (3) must be understood as conferring a wide discretion and it is to be observed that Clause (a) does not speak of rent actually collected but of rent accrued due–a somewhat notable variation from the language of the corresponding section of the Bengal Tenancy Act, which is otherwise closely followed. The plaint clearly states that the rent has been illegally enhanced and the enhanced rents forcibly levied and paragraph 10 of the written statement shows that this plea was well understood by the defendant. The Deputy Collector found as a fact that the rent had been arbitrarily or as he, puts it “whimsically” enhanced from time to time.
13. The District Judge acting on his interpretation of the section has declined to hear arguments on the question of enhancement; and herein we think he was wrong. His refusal goes to the root of the whole determination and we must accordingly call for a finding in the light of the above remarks on the evidence on record on the following issue:
What was the average value of the rent actually accrued due” under Clause (a) adopting the District Judge’s figure of Es. 66 per grace?
14. The finding should be submitted within two months and seven days will be allowed for filing objections.
15. The only other point argued relates to the maramat charges. We think appellants’ contention that these are not “rent in kind or otherwise” within the purview of the section is correct and that they lie outside the scope of the Collector’s determination.
16. Second Appeals Nos. 1726 to 1853 and the Memorandum of Objections in Second Appeal No. 190 of 198 13.
17. These Appeals and the Memorandum of Objections follow the decision in Second Appeal No. 1725 of 1913.
18. [In compliance with the order of the High Court, the District Judge submitted findings which were accepted and the decrees modified accordingly-Rep.]