1. These suits were brought by a landholder to enforce accepatance of Puttahs under Section 56 of the Madras Estates Land Act.

2. The Deputy Collector, who tried the suits, found that the tenure in the village, Chennianviduthi, was Amani tenure and that in spite of temporary lapses when cash rents were paid, the landholder was entitled to revert to the Varam system. The District Judge, on appeal, found that there was an implied contract between the parties that the rents should be paid in cash and, therefore, that the plaintiff had no subsisting right to revert to Amani rates.

3. He quotes in his judgment a passage from the Full Bench case of Venkatagopal v. Rangappa 7 M. 365 (F.B.) to the effect that payment of rent in a particular form at a certain rate for a number of years is presumptive evidence of the existence of a contract to pay rent in that form or at that rate for those years. In doing so he has omitted the words at a certain rate'. In Kavipurapu Rama Rao v. Diritavalli Narasayya 27 M. 417 it was pointed out that for drawing an inference of this nature from past payments the circumstances must be such as to suggest an agreement to pay at some definite rate. In a case where there was some evidence of money rents having been paid but the rates were fluctuating and not uniform, both the High Court and the Judicial Committee in Parthasarqthi Appa Row v. Chevandro Venkata Narasayya 6 Ind. Cas. 988 : 33 M. 177 (P.C.) : 14 C.W.N. 938 : 20 M.L.J. 696 : 8 M.L.T. 141 : 12 Bom. L.R. 648 : 12 C.L.J. 288 : (1910) M.W.N. 466 : 87 I.A. 110 Considered that it was not open to the Courts to infer an agreement to pay money rents, though the latter tribunal,observed that the prevalence of money rents in a particular locality for a number of years might form an element in the consideration of the question of usage. I am clearly of opinion that an agreement to pay rent in cash without the rate being definitely fixed would be void for uncertainty.

3. The Deputy Collector in this case found that the defendants' exhibits did not establish the fact that uniform amounts were paid by particular ryots for several consecutive years. He observed that Exhibit VI was not a Muchilika but a list of lands in the, holding of each ryot with details of the rate, of rent due for each land, but the rates were not uniform. The learned District Judge adopted the rates given in Exhibit VI as proper rates, while recognising that they varied. He did not find that a contract, express or implied, existed to pay rent at any particular rate, but he adopted the rates given in Exhibit VI, apparently because he considered that the plaintiff bad failed to prove his case.

4. The principle upon which the oase of' Ayyaperumal Odayan v. Ramasami Chittiar 80 Ind. Cas. 983 : (1915) M.W.N. 614 : 29 M.L.J. 362 : 2 L.W. 650 was decided was that if either party rebutted the statutory presumption raised in favour of the rate of rent paid in the previous Fasli by showing that that rate was for some reason or other not a satisfactory index of the terms on which the lands were being cultivated, then the Court, in order to arrive at a conclusion as to what was a proper Puttah under Section 57 of the Act, might go back and find whether there was evidence of any express or implied contract between the parties to pay rent at any definite money rate at any time, later than the period when Faisal rates were in vogue, discarding in so doing all evidence of temporary and provisional arrangements as affording no basis for a permanent settlement of the rate of rent that should prevail in the village [See the remarks of Coutts Trotter, J., at page 618 and my remarks at page 616 of (1915) M.W.N. 614; Ayyaperumal Cdayan v. Ramasami Ohettiar 80 Ind. Cas. 983 : (1915) M.W.N. 614 : 29 M.L. 362 : 2 L.W. 650. In Karuppa Goundan v. Narayana Chettiar 45 Ind. Cas. 406 : (1918) M.W.N. 7 L.W. 376 : 24 M.L.T. 35 Phillips and Bakewell, JJ., on similar principles held that, notwithstanding the omission from the Madras Estates Land Act of any provision corresponding to that in Act VIII of 1865, for reverting to the Faisal rates, those rates could be adopted in the absence of proof of a contract to the contrary. We were informed at the hearing of these appeals that there is material on the record upon which a conclusion might be reached on this point. As we cannot decide a question of fact in second appeal, we must call for fresh findings from the District Judge upon issues Nos. 2 and 3 upon the evidence on record in the light of the above remarks. Findings should be returned within two months. Ten days will be allowed for objections.

Krishnan, J.

5. I agree with my learned brother that the District Judge's finding on the question of the rent cannot be accepted as it stands.

6. He found that rent was payable in money, and not in grain according to the Varam system, because for about 40 years prior the rent was so paid. He considered that an implied contract to pay in cash was made out; and moreover applying Section 27 of the Estates Land Act held that, as the landlord had not proved that the Varam system prevailed in the year previous to the suit Fasli he was not entitled to tender a Varam Puttah for that Fasli. The plea that payments in money were only temporary lapses from the proper Varam system was also rejected by him. He had then to find what the proper money rent was and apparently finding a difficulty in the matter, he adopted the rates for Fasli 1304 as the proper rates on the grounds that they had been more clearly proved than the rate for other years and that the tenants admitted their willingness" to accept them. The difficulty in accepting his views arises from the fact that he. has dealt with the case on the basis that the payments of rent in money in previous years were at varying. rates from time to time and not at fixed rates; in fact he has treated that question as immaterial.

7. It seems to me that the question is very material and there ought to be a definite conclusion arrived at as to it. The respondents' Vakil has urged before us that the learned Judge was wrong in assuming that the rates varied and that the evidence showed that the rates were really fixed, though the amounts paid varied from time to time the variation being due not to the variation of the. rates but to other variable factors in the calculation such as the area and the kind of paddy cultivated, &c. He invited, us to consider the evidence ourselves but we could not do so in second appeal. The learned District Judge should consider this question and give us fresh findings on issues Nos. 2 and 3 as proposed by my learned brother.

8. I have stated that the finding on the question of fixity of rates is material, as I am unable to accept the learned Judge's present finding as to rent on the footing that the previous payments showed varying rates. For the purpose of deciding the suits the Court has to find under Section 51 of the Estates Land Act the rate or amount of the rent as well as the nature of it. It is only when both these are found that we can have a proper specification of rent in the Puttah. Moreover, to consitute a complete contract relating to rent both points have to be ascertained. If this is borne in mind, it will be seen that a finding that rent is to be paid in money and not in kind is not enough by itself to make a proper, complete contract. To get over this difficulty the learned Judge has taken the rates for 1304 as the proper rates. But we have not been able to find any legal ground for adopting those rates as the proper rates in preference to the rates for any other year. In fact when rates vary from time to time, there is no valid basis from which an inference, as to proper rates can be made. The fact that the rates of 1305 are more clearly made oat is certainly no ground for preferring them. We are thus met with the difficulty, if we take the rates as varying in different years, that though the rents have been paid in cash, we are unable to infer from it a definite and certain agreement about it. In the absence of a later complete and definite arrangement between the parties on the point the landlord must necessarily be allowed to fall back upon the original contract of Varam, as it will not have been validly replaced by anything later. As pointed out by my learned brother this Court laid down in Kavipunappa Rama Rao v. Dirisavalli Narasayya 27 M. 417 that an implied contract to pay money rent in lieu of Varam could not be inferred from previous payments when they were made at varying rates. This view has been accepted by the Privy Council in Parthasarathi Appa Row v. Chevandra Venkatu Narasayya 6 Ind. Cas. 988 : 33 M. 177 (P.C.) : 14 C.W.N. 938 : 20 M.L.J. 696 : 8 M.L.T. 141 : 12 Bom. L.R. 648 : 12 C.L.J. 288 : (1910) M.W.N. 466 : 87 I.A. 110. It is not based on anything peculiar to the old Bent Recovery Act, as the District Judge seems to think, but on general principles, and he was wrong in disregarding the ruling as he did. The application of Section 27 of the Estates Land Act makes no substantial difference on the question, as proof that the money payments were made according to varying rates will be proof to the contrary within the meaning of the Section, as it will show that the rate paid for the previous Fasli could not be taken as settling the question. See Ayyaperumal Odayan v. Ramasami Chettiar 80 Ind. Cas. 983 : (1915) M.W.N. 614 : 29 M.L.J. 362 : 2 L.W. 650. If the tenants prove what the rent paid for the Fasli was, the burden under the section will no doubt be on the landlord to prove that there was no fixity of rates. Except to this extent of putting the burden on the landlord Section 27 seems to have made no difference on the question, and the principle laid down in the case of Kavipurappa Rama. Rao v. Dirisavalli Narasayya 27 M. 417 remains unaffected. Recently another Bench on similar grounds adopted the Faisal rates as the proper rates--See Karuppa Goundan v. Narayana, Ohettiar 45 Ind. Cas. 406 : (1918) M.W.N. 7 L.W. 376 : 24 M.L.T. 35.

9. The application of Section 27 to the present case seems to fail on another ground as well; for the District Judge says in paragraph 20 of his judgment that there is no evidence as to what the rates were for the previous Fasli 1323. It is only when the rent for the previous Fasli is proved and reliance is placed on it to show the rate for the suit Fasli under Section 27, that the opposite party has to prove that it is not the proper rate. It is, however, argued by the learned Vakil for the respondents that the learned Judge is not correct in saying that there is no evidence, on the point. He contends that there is evidence to show that the same rates as. were mentioned in Exhibit VI for Fasli 1304 continued in force in Fasli 1323 also. As we are remitting the case for a finding to the District Judge, he may consider this contention as well. If he finds what the rates were in 1323, he will then consider, whether the rates have been proved to be variable so as to rebut the presumption of their being the proper rates for the suit Fasli.

10.The learned Vakil also argued that even if the rate in Fasli 1323 is not proved, Section 27 should be construed as justifying the inference that the rate in Fasli 1304 was the proper rate in the suit Fasli in the absence of proof to the contrary. The argument is that under Section 27 the rate for Fasli 1304 should be presumed to be the proper rate for Fasli 1305 and the latter again presumed to be the proper rate for Fasli 1306 and so on till we come to Fasli 1324, the suit Fasli. This construction does not seem to me to be warranted by the language of the section, which allows only a single presumption to be made, and that must be from facts proved and not presumed. The suggestion that we can have a multiplicity of presumptions and combine them together to make an inference as to what the proper rate of rent in the suit Fasli is, cannot be accepted, for that will be to make an inference not from the rates of the previous year as the section says, but from those of some remote antecedent year. The section provides for a special presumption and it must, therefore, be one falling within the language used; the scope of the section cannot be extended as suggested.

11. For the above reasons, I agree to the order proposed by my learned brother to call for revised findings on issues Nos. 2 and 3.

12. In complaince with the order contained in the above judgment the District Judge of Tanjore submitted the following

13. Findings.--The High Court has called for findings on the evidence on record on issues Nos. 2 and 3 in the suit, viz.

(1) Whether the tenure of the village is Amani, and if so, what are the correct Varam rates, or whether the tenure is one of fixed money rent and what are the rates, and (2) If the village was money rented, whether plaintiff is entitled to revert to the Varam rates.

14. I, therefore, hold that the defendants have not proved the prevalence of any uniformity of cash rates during the 30 or 40 years during which cash rates have prevailed, such as would justify me in concluding that there is any contract to pay at any fixed rate. I must, therefore, record a finding on issue No. 2 that the defendants have not proved that the tenure is one of fixed money rent, and that the tenure must, therefore, be Amani. The rates of Amani tenure are given in Exhibit F and these should be adopted. I answer issue No. 2 accordingly.

15. As to issue No. 3, the rulings already considered must be followed and I find that since there is no implied or specific con tract to pay fixed money rents, the plaintiff is entitled to revert to the Varam rates.

16. These second appeals coming on for final hearing after the return of the findings of lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following

17. The points argued before us do not raise any question of law. We cannot enter into any question of fact.

18. We accept the present findings of the District Judge and reversing the decrees passed by him, we restore the decrees passed by the Deputy Collector. The defendants will pay plaintiff's costs here and in the lower Appellate Court, ad valorem Pleader's fees without reference to minima.