The Judgment of the Court was delivered by

Subrahmania Ayyar, J.:— In this case the suit was brought by the petitioner, a landlord, against the defendant, his tenant, for the recovery of rent of the fasli year 1310. Before suit a patta had been tendered, but was not accepted. At the trial, the defendant urged that certain terms in the patta (to be referred to and considered later on), were such as to entitle him to refuse to accept the patta. The District Munsif agreed with the contention and dismissed the suit.

The petitioner, whilst denying that the terms of the patta referred to were open to such objection, contended that even if they were, the defendant was estopped from raising any such question in the present suit inasmuch as pattas containing precisely similar terms had keen accepted for a series of years in respect of the same holding.

Without taking any evidence as to the truth of the allegations on which this contention was based, the District Munsif held that, even assuming the allegations to be true, they could not support a plea of estoppel. Is this conclusion sustainable? Now there can be no doubt that if previous to the year to the rent of which the suit relates, the tenant had in express terms told the landlord that pattas containing terms objected to were to be taken as proper pattas and that the landlord might act on that footing the tenant would be precluded from impugning similar pattas tendered subsequently unless and until he had withdrawn his previous representation by communicating to the landlord that he objected, to the terms in question, in circumstances permitting the latter suing the former in time to obtain an adjudication under section 9 of the Rent Recovery Act as to the terms of a proper patta and to compel the acceptance of such a patta for the year in respect of which the tender was duly made.

It follows that, if the allegations on behalf of the petitioner about the acceptance for a series of years of precisely similar pattas be true, that constituted a representation by conduct that the landlord might proceed on the footing that the pattas were proper ones which, of course, would have the game effect as a representation in so many words.

It is in the interests, of the tenant, that, the, law imposes on the landlord the duty of tendering a patta setting forth the various matters referred to in section 4 of the Rent Recovery Act. It being open to the tenant to refuse to take any patta containing terms not considered by him proper, no other conclusion is possible when, the patta is accepted than that, the tenant asserts by implication that the patta is or may be taken to be, a proper one, especially when this conduct is repeated from year to year.

The District Munsif thought that, the representation, if any, in cases like this relates only, to a matter of belief in the tenant's mind. Now take the case of a tenant, who, though fully aware that a particular term in a patta is open, to objection, nevertheless, for reasons of his own, takes the patta without demur. In such a case is not the representation in respect of what by itself is no other than a fact, viz., the propriety of the patta, irrespective of the belief one way or, the other of the tenant as to that matter? In other words, the case may virtually he taken, to stand thus;—The landlord asks the tenant “may, I take, this patta to be correct.” The tenant replies in the affirmative. What question of belief or opinion arises here? In my view none.

It has now to be observed that there is nothing in the nature of any of the terms in question to preclude the application of the doctrine of estoppel to the case, if the plaintiff substantiates his allegations, for, as will be shown at once none of them is necessarily illegal, but they are one and all such as the tenant may have assented to so as by such assent to have made a pata containing them a valid contract between himself and his landlord.

Turning now to the items objected to, the first runs as follows: “If you raise punjah cultivation on punjah land with Sircar water you shall pay therefor tirvajasti according to the tirva of neighbouring nunjah land.” This was held by the District Munsif to be had for indefiniteness; but I cannot agree. In Sattappa Pillai v. Raman Chetti(1) it is pointed out (at page 7) that it is proper to define in a patta the terms of the tenancy with reference to a possible contingency which may arise in the course of the fasli for which the patta is tendered. The case contemplated by the term under consideration is such a contingency. The landlord could not know beforehand whether the tenant would in the particular year raise wet crops on dry land with the aid of water supplied by the landlord or what specific lands would be used for the purpose. In such circumstances how can the landlord be expected to say more than that on the contingency happening nunjah rates would have to be paid? That, had the landlord contented himself with simply saying so, such provision in the patta would be held valid, is clear from the case just referred to, and a provision in those terms would, I think, be understood as referring to rates payable on neighbouring lands which would ordinarily be of similar quality. How then can the express mention of what otherwise would be implied make any real difference P. If it does, one would think that the clause was thereby rendered more definite rather than the contrary. It may not here be out of place to say that the phraseology of the clause in question is substantially what the Legislature itself adopts as a proper criterion for the determination of the rate of rent in certain circumstances (see Rule III in Section 11 of the Rent Recovery Act). My conclusion on this point is confirmed by the decisions in the numerous cases which came up to this Court from the Sivaganga Zamindari in regard to a provision in pattas tendered by the landlord but refused by the tenants, to the effect that on failure of the tenant to raise paddy crop on wet land, be should pay half varam calculated on the average yield of such nanjah lands in the village or on the average yield of adjoining lands. This was held to be a proper provision [see Nagalinga Thavan v. R.G Orr.]. The decision in Ramasami v. Rajagopala(2) on which the learned pleader for the respondent laid stress was in suits under section 9 of the Rent Recovery Act; and Ramanjulu v. Ramachandra(3) stands on the same footing. There can be little doubt that there is a material distinction between the power of the Court in dealing with questions raised in a suit under section 8 or 9 of the Act not settled by contract or specifically provided for by law and its power when dealing with a litigation arising out of a contract constituted by an accepted patta. In the former case the law gives to the Court greater latitude than in the latter. In the one the Court has to decide the question with reference to its view of what is fair and proper in all the circumstances, while in the other the Court has only to decide whether the terms are obnoxious to the general law of contract and consequently altogether unenforceable. And it is scarcely necessary to say that in determining objections founded on the alleged uncertainty of a term in a contract, the test to be applied would be not whether the term is in itself certain but whether it is capable of being made certain. Id cerium est quod reddi cerium potest.

Judged by that test it is impossible to hold that such a term as that under consideration occurring in a completed contract would be void for uncertainty.

The next objection relates to the provision in the patta that the customary fees or marais payable by the tenant along with the rent, in connection with the services of the village accountant and certain other public servants of the village, would also be summarily proceeded for and charged with interest if in arrear. The District Munsif held that these fees were not recoverable by summary process and that interest could not be charged thereon and that therefore this clause in the patta was improper.

I disagree with him here also. According to the immemorial custom of the country, these fees are generally payable out of the produce of the laud, and in the majority of cases, it is the landlord that has to collect and pay them over to the servants concerned. Though not rent in the sense in which he could appropriate them himself yet in so far as their recovery is concerned, that they are to be treated as part of the rent is clear from section 4 of the Act which provides for the mention in the patta of the amount and nature of the rent “including any fees or charges payable with it according to established usage.” Were the fees to be taken as absolutely distinct from the rent the expression “including” would not have been used, and it is impossible to believe that the Legislature, while compelling the landlords to make the patta comprehend such fees, intended to disable him from recovering them by the process admittedly applicable to rent proper or to preclude him from charging interest at the same rate on both. It is hardly necessary to add that the inconvenience which would arise from such a construction, of the Act, would be grave and manifest. Section 52 of the Revenue Recovery Act, which provides for the recovery by summary process of emoluments due to village servants, indicates that the policy of the Legislature is in the direction of facilitating the collection of fees like those under consideration otherwise than by suits [see Collector of North Arcot v. Nagi Reddi] where it was held that an accountant even in a permanently-settled zamindari village came within the provision.

The last clause objected to refers to the tenant removing the produce after paying the rent and obtaining a receipt. It must be admitted that if the question were whether in a suit under section 9 this provision would be upheld in the absence of a contract the answer would be in the negative. But there is nothing to prevent a tenant contracting to be bound by such a provision. Section 82 of the Rent Recovery Act, referred to on behalf of the petitioner, is enough to show that such a contract would not be opposed to law.

The two cases cited, Bhupathi v. Raja Rangayya Appa Rau and Siriparapu Ramaanna v. Mallikarjana Prasada Nayudu may now be referred to. The former seems to have no bearing on the present question. The latter, in so far as it was relied on as being relevant here, decided only that a payment for a series of years of certain fees which in their nature were voluntary (certain temple fees), could not warrant the conclusion that there was an implied contract to pay them. In neither of the cases was any plea of estoppel such as that advanced here raised and it is difficult to see how such a plea could have been allowed to be raised in the suits, governed, as they were, by section 10 of the Rent Recovery Act, according to which the Court has to decide what the terms of the patta should be. On the other hand, Govinda Setti v. Sreenevasa Row Sahib(4), to which our attention was drawn on behalf of the petitioner, is a clear and direct authority in favour of his contention on the point.

The conclusion of the District Munsif on, the question of estoppel, therefore, is, in my opinion, unsustainable.

I would set aside the decree of the District Munsif and remand the case for disposal with reference to the plea of estoppel in the light of the observations made above and with reference to the other questions arising in the case.

The costs of this petition will abide the result.

Boddam, J.:— I am not prepared to hold that the allegations made on behalf of the plaintiff are incapable of supporting a sale of estoppel by conduct on the part of the defendant but lam not by any means clear that they are sufficient to constitute such an estoppel, unless upon evidence being taken it is proved that the plaintiff's position has been altered in consequence of the alleged conduct if the defendant upon which the estoppel is based. I think therefore that evidence should be taken and the exact facts established before the case is disposed of and I agree that, the District Munsif was wrong, in the circumstances, to dismiss the suit without taking any evidence that might be tendered on either side.

As regards the objections to the patta I agree in the Observations of Sir Subrahmania Ayyar.

I would set a side the decree of the District Munsif and remand the case for disposal according to law. The costs of this petition will abide and follow the event.