Judgment :- 1. The appeal and Civil Revision Petition are both presented by the plaintiff in O.S. 238 of 1122 on the file of the District Judge of Anjikaimal which was dismissed by the judge by his decree dated 16th Makaram 1124 consequent upon the order passed by him on M. P. 336/1123 filed by the 4th defendant praying for condonation of forfeiture under Act VI of 1122 (Cochin) which amended the Cochin Verumpattamdars' Act VIII of 1118. The suit was for eviction of a verumpattam holding on account of arrears under clauses (c) and (d) of Section 8 of the Verumpattamdars' Act, VIII/1118. The appeal is filed against the decree and the C. R. P. against the said order which was passed on 26-4-1124. 2. Section 3 of Act VI of 1122 provides for the substitution of the following: "[2] When a verumpattamdar is sought to be evicted on the grounds specified in clause [c] or clause [d] of sub-section [1], if at the first hearing of the suit the verumpattamdar pays or tenders to the lessor the pattam in arrear together with interest thereon and his full costs of the suit or if at the first hearing of the suit he gives such security as the court thinks sufficient for making such payment within fifteen days and such payment is made within the said period of fifteen days, the court shall, in lieu of making a decree for eviction, pass an order condoning the default and thereupon the verumpattamdar shall hold the property leased as if the default had not occurred. Where the payments referred to above are not made or tendered at the first hearing of the suit or within fifteen days thereof in case security is furnished, the court shall not either extend the time for or condone the delay in the payment but shall be bound to order the eviction of the verumpattamdar from the holding." for Sub-section 2, Section 8 of Act VIII of 1118 which provides that: "8. [2] When the eviction of a verumpattamdar is sought on the grounds specified in clause [c] or [d] of sub-section [1] the court shall not either extend the time for or condone the delay in the payment of such pattam or arrears, but shall be bound to order the eviction of the verumpattamdar from the holding." The first hearing of the suit was on 1-2-1123.. The day previous thereto, the 4th defendant filed in court M. P. 335 of 1123 praying that the court may be pleased to direct the plaintiffs to furnish particulars as to the arrears of rent claimed in the plaint as the plaint was not clear as to the way in which the total amount claimed by way of arrears was arrived at, there being a further complication in that cocoanut is claimed to be the major produce of the holding entitling the lessor to cocoanut pattern, that is, payment in kind, or its money value as on the due dates, though the pattam fixed in the contract is payable in money. On 1-2-1123 the court passed an order on M.P. 335/23 directing the plaintiffs to file a statement as requested. The settlement was filed in court on 8-2-1123 and M. P. 335/23 was accordingly recorded by the court on 15-2-1123. M. P. 336/123 was also filed by the 4th defendant on 31-1-1123, that is a day previous to the first hearing of the case. On 1-2-1123, that is, on the date of the first hearing, the court passed the following order:- "Plaintiffs take notice. Adjourned for disposal after the statements are filed to 15-2-". The statement obviously is the one that was prayed for and ordered on M. P. 335 of 1123. 3. Along with M. P. 336/23 the petitioner deposited in court an amount of Rs. 1,200/- which was admittedly in excess of the total amount that a verumpattamdar should pay or tender at the first hearing to secure condonation of default and continuation of the holding under Section 8 (2) of the Verumpattamdars' Act as amended in 1122. Though according to the 4th defendant the whole amount claimed in the plaint would, in no view be due to the plaintiffs, it was stated that the deposit was being made in order to secure condonation of forfeiture of the tenancy and in order that he and the other co-owners may "hold the property leased as if the default had not occurred". The prayer in the petition was that whatever is found legally due to the plaintiffs by way of arrears of rent, interest and costs may be paid over to them and should there be a balance the same may be returned to the petitioner. 4. The prayer in the petition was that whatever is found legally due to the plaintiffs by way of arrears of rent, interest and costs may be paid over to them and should there be a balance the same may be returned to the petitioner. 4. There was a controversy as to the amount that was due to the plaintiffs and the court below found that all rent that became due beyond 12 years prior to the date of the suit which formed part of the claim was barred by limitation. Regarding the other amounts, upon a proper calculation, the claim made by the plaintiffs was found to be excessive. The correct amount was fixed by the court in accordance with its conclusions which was directed to be paid to the plaintiffs from the aforesaid deposit made by the 4th defendant. The Court below also directed that the plaintiffs should get proportionate costs. The Court below allowed M.P. 336/23 and the arrears due having been paid as aforesaid, condoned the default of the verumpattamdar who was permitted to hold the property as before. 5. The points raised in this court are:-(1) that the 4th defendant is not a verumpattamdar entitled to seek relief under the Verumpattamdars' Act because, though he is an heir of the deceased lessee, he has not given the landlord the registered notice stating that he had "acquired" title to the leasehold under the provisions in that behalf contained in Section 9 of the Act. As a subsidiary point to this, it was contended that assuming the 4th defendant is competent to seek relief, such relief should be confined to the quantum of his interest in the leasehold as he is only one of the heirs of the deceased lessee who are co-owners. Another point urged is that the deposit made by him will not amount to payment or tender within the meaning of Section 8 (2) of the Act, as the deposit made, though sufficient, was conditional. The third point raised is that the decision of the court below that a part of the claim is barred by limitation is erroneous. 6. Another point urged is that the deposit made by him will not amount to payment or tender within the meaning of Section 8 (2) of the Act, as the deposit made, though sufficient, was conditional. The third point raised is that the decision of the court below that a part of the claim is barred by limitation is erroneous. 6. Point No. 1:- The plaintiffs accepted the heirs of the deceased lessee, who was a Muslim and whose heirs are therefore co-owners as being in possession in continuation of the deceased under the lease, received rent from them, and sought personal relief against them in the plaint for six years next preceding the suit, not in enforcement of the personal liability of the deceased and on the basis of the heirs having enjoyed his assets, but as though there was an attornement by the heirs who agreed to regard the registered lease in favour of the deceased as one in their own favour. The court below was of the opinion that the averment in the plaint that the defendants are in possession would be enough to clothe them with the character of lessees. Though that opinion may be liable to attack as having but a slender foundation, the existence of the other circumstances above mentioned renders the foundation firm and supports the conclusion. Having sought to cast liability on the defendants as lessees, the plaintiffs cannot deny them that status and disregard their rights, as such cannot approbate and reprobate. This claim in the plaint thus involves an admission of a renewal of the lease with the heirs of the deceased lessee who thus became themselves lessees on the terms of the lease deed executed in the time of the deceased which must be deemed to have been adopted by the parties as theirs, in which event, no new lease deed was deemed necessary and none was therefore executed. The plaint may also be taken as an offer to the heirs to be lessees, which having been accepted, would bind and regulate the rights of the parties. The 4th defendant and the other heirs are therefore verumpattamdars in their own right and are as such entitled to the reliefs under the Act. The deposit and the prayer for condonation made by the 4th defendant was expressly on behalf of himself and the other heirs of the deceased lessee. The 4th defendant and the other heirs are therefore verumpattamdars in their own right and are as such entitled to the reliefs under the Act. The deposit and the prayer for condonation made by the 4th defendant was expressly on behalf of himself and the other heirs of the deceased lessee. A payment or tender can be made by a co-owner to protect the entire co-ownership property without the concurrence of the other co-owners. The 4th defendant was therefore competent to make the deposit and make the prayer for condonation which could be taken to have been made by a verumpattamdar, and relief could be given condoning default and enabling the leasehold to continue as before as if no default had occurred. The next point raised is as to whether Section 9 of the Act which provides for the issue of registered notice by "any person having an interest in the holding of a verumpattamdar by virtue of a title acquired by act of parties or by operation of law" would apply to the case of a devolution of the rights of a deceased lessee upon his heirs on his death. It is urged on behalf of the respondents that the word "acquired" signifies the obtaining of title as a result of a positive act done by the acquirer and will not apply to a case where, on account of death, the right devolves upon the heirs of the deceased lessee. The argument commends itself to us. The meaning given it Murray's ' A New English, Dictionary" for the word "acquire" is, "to gain, obtain, or get as one's own, to gain the ownership of (by one's own exertions or qualities) and for the word "acquired", is "gained or obtained by one's own exertion; gained in contradistinction to innate or inherited". The heirs of a deceased lessee may not know about his death until after a month and what is required by Section 9 is that the notice contemplated thereby should be issued within one month from the date of the Act if the interest was acquired before, and in cases where the interest is acquired after the Act came into force, within one month from the date of such acquisition. In a case where the heirs know about the death of the lessee only a month after the death the benefit of the Act would become lost to them and lost on account of their default, even before they become aware of their right and of the need to act. In our judgment an heir on whom title to the leasehold devolves on account of the death of the lessee is not a person who acquires title to the leasehold within the meaning of section 9(1) of the Verumpattamdars' Act. 7. Point No. 2:- The deposit made by the 4th defendant is alleged to be conditional in that it was not possible for the plaintiffs to draw any amount out of it before the question of the plaintiffs' title thereto was determined by the court, the prayer in the petition being for payment to the plaintiffs whatever is found due to them. The suggestion is that the deposit must have been of amounts admittedly due which could be drawn by the plaintiffs without any contest, consideration or decision by Court. In other words, what is contended is that the deposit must be a "payment into Court" under Order XXIV of the Code of Civil Procedure, Rule 1 of which provides that "the defendant in any suit to recover a debt or damages may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim". Such a deposit, if made, can be withdrawn by the plaintiffs without prejudice to their right to have their claim for the balance adjudicated in the action. The consequence of the deposit and notice thereof to the plaintiffs is that future interest on the amount deposited shall not run nor shall the depositor be liable for any costs incurred subsequent to the deposit having relation to the amount deposited as the plaintiffs could withdraw the amount deposited. If this is the kind of deposit contemplated by the Act then, in the event of the court finding that the amount deposited is short of the real amount due, the relief granted by the Act will not be available to the depositor. This could hardly have been the intention of the Legislature. If this is the kind of deposit contemplated by the Act then, in the event of the court finding that the amount deposited is short of the real amount due, the relief granted by the Act will not be available to the depositor. This could hardly have been the intention of the Legislature. Had this been the intention, a landlord would be in a position to terrorise, if not tyrannise the tenant by making allegation of arrears of rent and the tenant would be compelled to respect and pay the entire claim as otherwise, he would run the risk of losing his holding. The Act was passed to benefit the tenants. Act VIII/1118 granted permanency to the Verumpattamdar. It provided by clauses (c) and (d) to section 8 that default in payment of arrears due until date of the Act within six months therefrom (clause (d)) and non-payment of the future rent, or the revenue, cess, tax or special charges, if any, within three months of the due date, would lead to forfeiture of the permanency granted by the Act. On 22-4-1122 two enactments were passed, (1) Proclamation XI/1122 and the other, Act VI/1122. On 22-4-1122 two enactments were passed, (1) Proclamation XI/1122 and the other, Act VI/1122. The Proclamation referred to suits for eviction of Verumpattamdars filed on or after the 12th day of Meenom 1119 and before the date of publication of the Proclamation, that is, 22-4-1122, and provided in clause (1) that: "if the verumpattamdar deposits, within 60 days of the date of publication of the Proclamation in the Cochin Government Gazette, in the court in which the suit, review, appeal or revision is pending, or in the case of a decree in the Court executing or competent to execute it the Court shall pass an order condoning the forfeiture and thereupon the verumpattamdar shall hold the property as if the default had not occurred." Clause (2) provides that: "[2] Where the first hearing within the meaning of the Cochin Verumpattamdars' [Amendment] Act, VI of 1122, in a suit for eviction instituted against a verumpattamdar on or after the 12th day of Meenom 1119 and before the date of the publication of this Proclamation falls on or after the date of the publication of this Proclamation, the deposits referred to above shall be made either on the date of the first hearing or within sixty days of the publication of this Proclamation whichever is later." Act VI/1122 which, as already stated, was passed on the same day as Proclamation XI/1122 contains the grant of a similar concession to verumpattamdars against whom suits for eviction are filed, under clauses (c) or (d) of Section 8(1), on or after 22-4-1122 that is, any time subsequent to the period for which provision is made by the Proclamation. Both enactments provide a concession to the verumpattamdar enabling him to secure continuance of his holding notwithstanding a default in payment of rent which, under the existing law, entails its forfeiture. The question is whether the payment or tender under the Act should be not merely of whatever is legally recoverable but should be of the entire amount claimed by the plaintiffs whether legally recoverable or not and whether it is competent for the verumpattamdar charged with default to defend and contend that there has not been a default as alleged either to the extent, in the manner, or to any extent or whether he is bound to pay unconditionally and without protest the whole amount claimed should he care to continue to have the holding. It has been held that it is competent for a tenant under Section 8(1)(d) of Act VIII/1118 to make deposit and then contest his liability wholly or partly (See Noor Rowthar v. Channimala Kounder, 38 Cochin 510). The requirement of payment under the Act would be satisfied if a deposit is made in Court though such a deposit would not be a "payment into court" under Order XXIV of the Code of Civil Procedure. In XL Cochin 95, Chakkannan v. Aryan Bhattathiripad Proclamation XI/1122 came up for consideration and it was held that it was competent for the verumpattamdar to make the deposit accompanied with a protest as regards his liability. The indication in the deposit that the claim is contested would not amount to the imposition of a condition to the deposit but would only render the deposit one accompanied by a protest as regards the liability which will not vitiate the deposit and detract from its operation as a payment within the meaning of Section 8 (2) of the Act. The difference in the language of the Proclamation and the Act is not and could not be meant to convey a different meaning because the treatment in respect of tenants against whom eviction is sought in suits filed before and in those filed after 22-4-1122 could not be different. If the Legislature meant imposing an obligation upon the tenant to pay the entire amount claimed without liberty to contest liability then after the words "if at the first hearing of the suit the verumpattamdar pays or tenders to the lessor the pattom in arrear" the word "claimed" would have been there. The absence of that word indicates that what is to be paid is what is really due and not what is claimed by the landlord as due. 8. A tender by a deposit will not be rendered conditional if the depositor wants the claimant or creditor to do what he is in law bound to do. The landlord plaintiff must state what are the arrears claimed by him and how the amount is arrived at. In this case particularly there have been various payments made. The payments are admitted. How the payments have been appropriated is not indicated in the plaint. As already stated this is a case in which the plaintiffs are found entitled to cocoanut pattom. In this case particularly there have been various payments made. The payments are admitted. How the payments have been appropriated is not indicated in the plaint. As already stated this is a case in which the plaintiffs are found entitled to cocoanut pattom. The rent fixed in the registered lease deed which was of the year 1098 is Rs. 40/- a year. This amount would be enhanced about and more than twofold if calculated on the basis of cocoanut pattom in the 4 years preceding the suit. Whether in the plaint the plaintiffs calculated cocoanut pattom, if so for what year and at what rate are not indicated therein. This necessitated calling for particulars by filing M.P. 335/23. The court was satisfied that particulars were necessary and they were directed to be supplied. The plaintiffs did not contend that no fresh particulars are called for and that the plaint as originally filed did contain all necessary particulars. They filed a statement of particulars in court on 8-2-1123 which was recorded by the Court on the 15th of that month. The 4th defendant in M.P. 336/23 only stated that the plaintiffs may be paid whatever they are found to be entitled to. In the facts of this case as above stated it cannot be stated that this averment in the petition amounts to the appending of a condition to the deposit. The plaintiffs contend that they did not draw any money out of Court until after the correct amount due to them was ascertained by the Court. This again will not detract from the efficacy of the tender or payment made by deposit of the adequate amount in Court. Chitty on Contracts, 20th edition, 323 says:- "The fact that the creditor disputes the amount due and refuses to receive the amount tendered by the debtor does not affect the validity of the tender or render it a conditional tender. A tender of so much money "under protest" is not a conditional tender and is good in law so long as do condition be imposed, though a right to dispute the amount due may be reserved. And so, if the condition be one to which the creditor has no right to object, e. g., "I will pay the money if you will take it up" or the like, this will not invalidate the tender. And so, if the condition be one to which the creditor has no right to object, e. g., "I will pay the money if you will take it up" or the like, this will not invalidate the tender. Tender of a mortgage debt upon the condition of a reconveyance of the mortgaged premises is good, as the mortgagor is merely insisting on his rights under the contract." 9. Another way of looking at the deposit is to regard it as security furnished on the date of the first hearing. The plaint being incomplete on that date, particulars were called for, ordered and supplied within 15 days therefrom on which day or thereafter the person depositing said nothing even as regards the plaintiffs being paid thereout only the amounts ultimately found due to them. On that day the deposit made may be regarded as constituting payment which had by that time become free from even the defect that is alleged to have existed on account of the averment contained in the petition accompanying the deposit. That averment had thus justification as the plaintiffs had not indicated clearly even the nature of their claim. The claim having been clarified by particulars nothing more was said by the depositor. Clause (2) of Section 8 provides for security being given at the first hearing for payment within 15 days which security if given and payment if made would ensure to the verumpattamdar condonation of the forfeiture and continuance of his holding as if payment had been made even on the date of the first hearing. In our judgment for the aforesaid reasons, the deposit made by the 4th defendant amounted to a payment or tender within the meaning of clause (2) of Section 8 of the Verumpattamdars' Act as amended by clause (3), section 2 of Act, VI/1122 and that the 4th defendant and the other co-owners are entitled to the condonation of the default enabling them to continue to hold the properties as Verumpattamdars as if no default had happended. Point No. 3:- The court below found that claims for a period beyond 12 years preceding the suit are barred by limitation. This conclusion is assailed relying upon sub-section (4) of Section 16 of the Cochin Agriculturists' Relief Act, XVIII/1114 Act which provides that: "[4]. Point No. 3:- The court below found that claims for a period beyond 12 years preceding the suit are barred by limitation. This conclusion is assailed relying upon sub-section (4) of Section 16 of the Cochin Agriculturists' Relief Act, XVIII/1114 Act which provides that: "[4]. Notwithstanding anything contained in sub-section [1], if in any year during which an instalment is due under Sub-section [3] the agriculturist makes default in the payment of the pattern other than puravaka dues payable for that year on the due date as provided in the contract of tenancy or where there is no such contract the dates specified in the Cochin Tenancy Act. XV of 1113, the landlord shall be entitled to recover from the agriculturist the entire arreas for the period after 1st Chingom 1107 till the date of the commencement of this Act together with six per cent per annum simple interest from the date of default after giving credit for the actual amount, if any, received by him for any instalment." The argument is that under Clause (2) of Section 16 which provides that: "[2]. All arrears of interest outstanding at the commencement of this Act and the entire pattern in arrears for the period prior to the first day of Chingom 1107 and fifty per cent of the pattern in arrears for the period subsequent thereto up to the date of the commencement of this Act shall be deemed to be discharged and only the balance shall be deemed to be the arrears due from the agriculturist at the commencement of this Act." those arrears ceased to be due on the date of the Act and that they got a new life in the contingency contemplated in sub-clause (4) which, in this case, happened in Thulam 1115 which is the month in which rent is payable under the lease, the Act having come into force on 1-1-1115. To appreciate this argument it is necessary to look into the result of the provisions of the Act as regards the arrears payable before 1-1-1115. Clause (2) of Section 16 which has been read provides that all interest, and 50 per cent of the arrears shall be scaled down and what is payable is only the remaining 50 per cent of the arrears. Clause (2) of Section 16 which has been read provides that all interest, and 50 per cent of the arrears shall be scaled down and what is payable is only the remaining 50 per cent of the arrears. Sub-clause (3) provides that: "[3] The arrears as scaled down under Sub-section [2] shall be payable in annual instalments, the amount for the first instalment being payable on or before the last day of Karkadagam 1115 and the amount for each subsequent instalment being payable on or before the last day of Karkadagam of each succeeding year: Provided that [1] the amount of each instalment is equal in value to one year's pattom and in the case of the last instalment whatever remains due; [2] the amount payable as scaled down shall in no case be less than one year's pattom; [3] If the agriculturist makes deposit in payment of two consecutive instalments the landlord may claim in one lump the whole or balance amount, as the case may be, of the arrears as scaled down under Sub-section [2] with six per cent interest from the date of default." Sub-section (1) of Section 16 runs thus: "[1]. Subject to the provisions of Sub-section [4] the arrears of pattom and interest thereon payable by an agriculturist to a landholder, jenmi, or intermediary at the commencement of this Act whether the same be due as such or whether a decree has been obtained therefor, shall be scaled down in the manner specified in Subsection [2]." The result is that the 50 per cent that is payable is payable by instalments. The consequence of non-payment of any one instalment is to render the instalment defaulted and those yet to be made exigible on such default with 6 per cent interest from the date of default. Section 22 of the Act provides for the exclusion of the period between the last day of Karkadagom 1114 and the period on which the last instalment falls due under Section 7,16 and 17, in computing the period of limitation for recovery of the rent payable by instalments. This obviously has no application to the 50 per cent that is scaled down under sub-clause (2) of Section 16. This obviously has no application to the 50 per cent that is scaled down under sub-clause (2) of Section 16. The default of the tenant in payment of the current dues from 1-1-1115, that is the date on which the Act came into force would deprive him of his immunity from liability which he obtained under sub-clause (2). It is not that his default fastens a new liability upon him. He had the advantage of a statutory discharge under sub-clause (2) of 50 percent of the arrears and of all interest until the date of the Act. That advantage is taken away from him on account of his default in the payment of current dues on which default the landlord becomes free to enforce whatever arrears he could, in law, recover, on that day, as on account of lapse of time from the date of the Act, the amounts scaled down under sub clause (2) may get barred by limitation. If the tenant does not at all commit default, then the landlord gets no part of the amount scaled down. If, however, he does commit default at some time subsequent to the Act, the landlord would be free to regard whatever arrears are realisable subject to the law of limitation as not discharged. The longer the time that elapses from the date of the Act to the date of default by the tenant in payment of current dues, the more would be the payment actually made by the tenant. The principle underlying the provision is that the landlord should be assured of the payment of current dues should the tenant be free from the amounts scaled down under sub-clause (2). If, therefore, at the time the Act was passed, 12 years' arrears could have been realised and for one year the tenant pays his current dues, then the immunity of the tenant to 50% of one year's arrears becomes absolute and so on year after year. The intention of the Legislature would appear to be that a tenant on whom is conferred the concession of a scaling down under sub-clause (2) is only a tenant who punctually pays and does not leave arrears at least from the date of the Act. The view taken by the Court below on the question of limitation is therefore correct. 10. A question has also been raised as regards interest. The view taken by the Court below on the question of limitation is therefore correct. 10. A question has also been raised as regards interest. It was contended that interest upon the entire arrears to which the plaintiffs were found entitled till 1-1-1115 should have been granted. The lower court in its order dated 22-5-1124 concluded the discussion regarding the determination of the amounts due to the plaintiffs by stating "so the only portion of the claim put forward by the plaintiffs that is now rejected is one for arrears of pattern accrued due till the end of 1110". The question of interest upon the said arrears does not appear to have been either specifically presented for determination or determined by the court. Under the circumstances we do not consider it proper to permit the plaintiffs to raise the question for the first time before this Court-The rights of the parties will be as regulated and fixed by the court below. 11. Exception is taken on behalf of the appellants to the order passed by the Court below on the question of costs. The court below has exercised its discretion in this matter and there is no reason to upset the order passed by it. 12. Some argument was raised as to the maintainability of the Civil Revision Petition, it having been filed after the passing of the decree in the case. The appeal being against the decree dismissing the suit and as it bears the total valuation as in the plaint and as the judgment by reference to the order on M.P. 336/1123 must be deemed to have comprised the order as well the consideration of the correctness of that order can be done in the appeal itself and there is no need for a separate Civil Revision Petition. In the result the appeal and the Civil Revision Petition are dismissed except in respect of interest, if any, disallowed by the Court below upon that part of the arrears whose recovery is not barred by limitation. 13. In the special circumstances of this case we consider it proper to direct that the parties shall pay themselves their respective costs in this Court. Dismissed.