Agreement to pay and receive proportionate rent.

These second appeals arise out of a batch of suits filed by one of the landholders of Sri Vilasapuram in Tiruttani Division in the Chittoor District against the tenants of the village for the recovery of his share of the rent for faslis 1353 to 1355. The main dispute between the parties in the Courts below and before us was in respect of two matters: (1) whether the plaintiff who was only one of the co-sharers was entitled to sue for his share of the rent due, and (2) what is the proper rate of rent, whether it was. payable cropwar or in cash. The Special Deputy Collector of Chandragiri as well as the learned District Judge of Chittoor decided against the tenants-defendants on both the points. They are the appellants before me.

The first contention of the learned counsel for the appellants was that as the plaintiff was admittedly only entitled to 29/40 in a portion of the village which remains undivided between the five sharers including him, he cannot maintain the suit for recovery of a proportionate rent without making the other co-sharers parties. He relied on the decision in Ethiraja Mudaliar v. Murugesa Mudaliar1 in support of his contention. That decision, however, does not directly govern the present case. There an elder brother in a divided family commenced proceedings under sections 111 and 112 of the Madras Estates Land Act against the tenants in the village belonging to the family without making his minor younger brother a party to the proceedings. He wanted to bring the entire holding to sale for the arrears of rent due. It was held that it was not competent for him to initiate such proceedings without making the other co-sharers parties. The principle laid down in that decision is to be found in the following passage:

“If there is more than one landholder.....it would not be competent for one landholder to exercise the power of sale or initiate proceedings in regard thereto without the other landholder or landholders being made parties to such proceedings.”

In the present case, the plaintiff is not seeking to do any such thing. He is only seeking to recover his share of the rent due.

It must be taken as well established that a joint owner or a co-sharer is not entitled as such to sue for proportionate rent, but it has been held by a Division Bench in Srinivasa Varadachariar v. Sami Reddi2, that though this is undoubtedly the established rule, nevertheless if the parties, namely, the landholders and the tenant agree to accept and pay proportionate rent according to shares, there was nothing illegal in such an arrangement. In that case, the agreement between the parties was evidenced by the execution of pattas and muchilikas in respect of the particular share of the plaintiff landholder. There are no such pattas and muchilikas in the present case. But I consider that the ratio decidendi of this decision is that there can be an exception to the general rule where there is an agreement between the parties, and presumably this agreement can be proved in one or other of the ways known to law. Execution of pattas and muchilikas would, of course be very good evidence, but it may be possible for a court to find such an agreement even on other evidence, as for instance, continued practice and usage. The view I take of the decision in Srinivasa Varadachariar v. Sami Reddi2 is also the view taken in Raju Goundan v. Kuppu Goundan3. The learned Judge there observed as follows:

“In Srinivasa Varadachariar v. Sami Reddi1 it was held that though a joint owner is not entitled to sue for proportionate rent, if parties agree to accept and pay proportionate rent according to shares, there is nothing illegal in it and that an owner of 5 1/8 share in a shrotriem village was held entitled to tender a patta for his 5 1/8 share. This decision therefore seems to assume that it is open by agreement between the several joint holders and the ryot to apportion the rent payable to each landholder and that in respect of each landholder ther