ORDER These three Revision Petitions raise the same question. The petitioners before me arc the landlords. The respondent in all the three petitions is the same tenant. He filed F.R. Nos. 214, 216 and 218 of 1959 before the Rent Court, Kumbakonam, praying that a definite amount of rent may be fixed instead of a waram tenure under which he was cultivating, as he was experiencing difficulties in sharing the produce. The landlords objected to the fixing of the fair rent and changing of the waram tenure into fixed fair rent tenure. The Rent Court, Kumbakonam, held that in spite of the agreement signed by the parties before the Conciliation Officer the petitioner (respondent herein) is entitled to apply for fixation of rent for his lease lands. The Rent Court also fixed the rent payable in all the three cases. The landlords preferred Rent Appeals Nos. 12,13 and 14 of 1959 before the Rent Tribunal. The Rent Tribunal confirmed the order of the Rent Court holding that the Rent Court has got the power to fix a definite rent even in the case of waram tenure. Aggrieved at the decision of the Rent Tribunal the landlords have preferred these petitions before me. The facts are admitted. The tenant is cultivating under the petitioners on waram tenure. There were disputes and the parties entered into an agreement before the Conciliation Officer, Kumbakonam, agreeing to deliver the produce and to divide the yield from the lands on the threshing floor itself, the landlords being entitled to 40 per cent, of the produce and the tenant 60 percent. The tenant seeks to get definite fair rent fixed instead of payment of share, as, according to him, he experiences difficulties in sharing the produce. The only question that arises for consideration in this case is whether in a waram tenancy providing for sharing, according to section 4 of the Act, the Rent Court is entitled to fix definite amount as fair rent instead of a share in the produce. The Preamble to the Madras Cultivating Tenants’ (Payment of Fair Rent) Act (XXIV of 1956) provides that the Act is enacted for providing for the payment of fair rent by cultivating tenants. Section 2 (c) defines ‘fair rent’ as meaning the rent payable under the Act. Section 4 says what is fair rent. The Preamble to the Madras Cultivating Tenants’ (Payment of Fair Rent) Act (XXIV of 1956) provides that the Act is enacted for providing for the payment of fair rent by cultivating tenants. Section 2 (c) defines ‘fair rent’ as meaning the rent payable under the Act. Section 4 says what is fair rent. Section 4 (1) provides that the fair rent shall be 40 per cent, of the normal gross produce or value in money. Section 5 provides that the fair rent in respect of any land may be paid either in cash or in kind in accordance with the terms of the contract between the landowner and the cultivating tenant. It also provides how rent is payable in the case in the absence of an agreement. The Third Proviso to section 5 (1) is important. It runs as follows: "Provided further that where the crop raised is paddy the landowner shall have the right to insist that the rent shall be paid in kind." The next section that has to be considered is section 7. It provides that: "Where the produce to be shared is grain the sharing shall be done at the threshing floor on which the threshing took place: and no portion of the produce shall be removed therefrom at such time or in such manner as to prevent the due division thereof at the proper time." Section 9 provides for application to Rent Courts for fixation of fair rent. It runs as follows: "Notwithstanding any agreement between a landlowner and the cultivating tenant or any decree or order of a Court either party may apply to the Rent Court for fixation of fair rent or for deciding any dispute arising under this Act." The above sections should be read together. Section 4 provides that in a case of wet land 40 percent, of normal gross produce or its value in money is the fair rent. In cases in which the tenancy itself as in the case of waram tenancy provides for sharing of the normal gross produce in the ratio of 40: 60, the requirement under section 4 is satisfied and the fair rent is one according to the statute itself. The necessity to fix fair rent arises in cases which do not provide for sharing of the normal gross produce, that is in cases which stipulate a particular amount of grains or cash. The necessity to fix fair rent arises in cases which do not provide for sharing of the normal gross produce, that is in cases which stipulate a particular amount of grains or cash. In such cases it becomes necessary for the Court to fix a rent, because the parties seldom agree on the normal gross produce. So the Act and the Rules framed thereunder provide the procedure under which the normal gross produce in respect of a land should be determined. Rule 10 of the Madras Cultivating Tenants (Payment of Fair Rent) Rules, 1956, provides: “ For determining the normal gross produce in respect of any land for any specified crop, the Court or the Tribunal as the case may be shall ascertain the quantity of the produce which would be obtained if such crop were grown in a year in which the rainfall and the seasons are of a normal character on a land of the same class as the land in question similarly situated and possessing the similar advantages. For the purpose of such determination the Court or the Tribunal may take into consideration the soil classification of the land and the normal or standard outturn of paddy in the case of wet land and the standard dry or irrigated crop in the case of dry un irrigated or irrigated land as the different Classes and sort of soil as finally adopted at the last land revenue settlement of the tract in which the land is situated.” It also provides that the Court may take into consideration the other circumstances. This procedure becomes necessary to fix up the fair rent that is paid where the tenancy docs not provide for sharing of the produce according to the Act. In the case of waram tenure which itself provides for sharing according to the Act, there is absolutely no necessity for resorting to the provisions that are provided for fixing what the normal gross produce is. The Proviso to section 5 (1) gives the landlord the right to insist that the rent shall be paid in kind. But the respondent contends that the requirement of this Proviso will be satisfied when the Court fixes up the fair rent payable in kind and does not deprive the power of the Rent Court from changing the waram tenure to one of fixed amount payable in kind. But the respondent contends that the requirement of this Proviso will be satisfied when the Court fixes up the fair rent payable in kind and does not deprive the power of the Rent Court from changing the waram tenure to one of fixed amount payable in kind. But section 7 provides that where the produce to be shared is grain the sharing shall be done at the threshing floor. It may be noted that the words used are “produce to be shared.” This section confers a right where the tenancy provides for sharing of the produce with the landlord and insists on the sharing to be done in the threshing floor and the right conferred on the landlord by this section cannot be taken away unless there is some express provision. Section 9 provides that the Rent Court may fix a fair rent notwithstanding any agreement between a landlord and cultivating tenant. It does not state that the Rent Court can fix a fair rent notwithstanding the provisions of section 4 (1) of the Act. This section should be read to mean that where the tenancy is not according to the statute the Rent Court is entitled to fix a fair rent in spite of the agreement to the contrary. If the ratio fixed regarding the share of the produce is not in accordance with section 4(1), the Rent Court will have power to fix the waram tenure according to the provisions of this Act. But I am unable to read into the section any power enabling the Court to change a waram tenure which is according to section 4 (1) (i) to that of a fixed amount of rent payable in kind or cash. To hold so would be in contravention of the fair rent fixed by the statute as well as the right given to the landlord to insist on his share being given at the threshing floor when the tenancy provides for sharing of the produce. For the reasons stated above I am of the view that section 9 does not empower the Rent Court to alter the waram tenure, which is according to section 4, into one of fixed rent either in kind or in cash. The learned counsel for the respondent relied on Ramayyan v. Seshabbayya and another1, I have perused the original judgment itself. The learned counsel for the respondent relied on Ramayyan v. Seshabbayya and another1, I have perused the original judgment itself. Ramachandra Iyer, T. was dealing with a case in which the landlords filed an application for fixation of fair rent in the case of lands which were cultivated on the basis of waram tenure. In that case the tenants opposed the application on the ground that the Court had no jurisdiction to fix a fair rent,in a case where the tenancy agreement fixed a snare of the produce. Dealing with the various contentions raised by the learned counsel, the learned Judge observes as follows: “In my opinion section 9 is wide enough to include a case of tenency on the basis of waram system, as the section expressly says that notwithstanding any agreement between a landowner and the cultivating tenant either party would be entitled to apply to the Rent Court for fixation of Fail Rent.” If that observation was confined to a case of waram tenure which fixed a ratio other than the one that is prescribed in the statute, I would have had no difficulty in agreeing with the learned Judge. But the learned Judge later observes as follows: “ That does not mean that the authority designated under section 9 has no jurisdiction to fix fair rent in a case where the parties agree to share produce under the waram system. In the Act itself there is no provision prohibiting the Rent Court from settling or fixing a fair rent in a case to which the waram system applies. I am therefore unable to agree with the contention of the learned Advocate for the petitioners that the section regulates only rent in a case where fixed rent was agreed to between the parties in respect of leasing of land and not to a case where the waram system was applicable.” Further in conclusion His Lordship observes: “ I am therefore of opinion that section 9 authorises the Rent Court to fix a fair rent in such a manner as the Court may decide in a case where the original contract of lease was on the waram system. In fixing such rent that Court is not bound to adopt the waram system but may in its discretion adopt a fixed rent basis.” I regret I am unable to agree with the decision of Ramachandra Iyer, J. holding that it cannot be contended that section 9 has no jurisdiction to fix a fair rent in a case where the parties agree to share the produce under the waram system. In the circumstances I direct that the Revision Petitions may be posted before a Bench for disposal. [In pursuance of the above Order of Reference the petitions came on for hearing, before a Division Bench (Jagadisan and Srinivasan, JJ.)]. R. Gopalaswami Ayyangar, for Petitioners. K. Hariharan, for Respondent. The Judgment of the Court was delivered by Jagadisan, J.†- The respondent in these Revision Petitions is one Kadiresa Padayachi. He is a tenant holding three items of wet lands, S. No. 50/1 of an extent of 72 cents, R. S. No. 48 of an extent of 2 acres, 48 cents, R.S. No. 54/49 of an extent of 27 cents under three different landowners in the village of Mangalam Papanasam taluk, Tanjore district. These landowners are the petitioners in these petitions. The respondent claimed to be a ‘cultivating tenant’ entitled to the benefits of Madras Act XXIV of 1956. He filed three applications for fixation of fair rent under section 9 of that Act. He was admittedly cultivating the lands under what is called ‘waram‘ tenure by which the produce is shared in certain proportion between the landowner and the cultivator. Previous to the filing of these three applications there were disputes between the petitioners and the respondents regarding the rent payable, and it is common ground that the parties entered into an agreement filed before the Conciliation Officer, Kumbakonam in E. Dis. No. 155 of 1956 by which the respondent agreed to deliver the petitioners 40 per cent, of the yield in each year. The landowners, the petitioners objected to the fixation of fair rent mainly on the ground that the agreement recorded before the Conciliation Officer Kumbakonam was valid and binding, and could not be reopened or set aside. The Rent Court, Kumbakonam, passed a common order in these applications overruling the objection of the present petitioners and fixing fair rent. In each case the fair rent fixed is a quantity of paddy and a few bundles of straw. The Rent Court, Kumbakonam, passed a common order in these applications overruling the objection of the present petitioners and fixing fair rent. In each case the fair rent fixed is a quantity of paddy and a few bundles of straw. It is not necessary to give the particulars of fair rent fixed. The present petitioners preferred appeals against the said decision to the Rent Tribunal under the Act, the District Munsif of Valangiman at Kumbakonam. They reiterated the contentions urged by them before the Rent Court, but did not succeed. The appeals were dismissed. Hence these Civil Revision Petitions have been preferred by the landowners. These petitions were heard in the first instance by our learned brother, Kailasam J. On behalf of the petitioners it was contended before the learned Judge that the fixation of fair rent under the Act would amount to a conversion of the waram tenure admittedly subsisting between the parties, into a tenancy agreement for a fixed rent, and that the provisions of the Act did not permit such change of tenure. The respondent relied upon a decision of this Court reported in Ramayyan v. Seshappayyar1 in which Ramachandra Iyer, J., as he then was, took the view that there was no prohibition under the Act for the Rent Court to settle or fix fair rent even in respect of waram tenures. The learned Judge, Kailasam J., directed these Revision Petitions to be posted before a Bench for disposal, as he was unable to agree with that decision. Madras Act XXIV of 1956 is intended to regulate the rent payable by a cultivating tenant to the landowner so as to avoid avaricious rack renting by landowners and to prevent cultivators from fattening on the lands at the expense of the owners. It will be convenient to refer to the salient provisions of the Act quite briefly. Fair rent means the rent payable under the Act. In the case of wet lands the fair rent fixed is 40 percent, of the normal gross produce or its value in money. In the case of wet land where the irrigation is supplemented by lifting water, the fair rent is 35 percent, of the normal gross produce or its value in money. 331/3 percent, of the normal gross produce or its value in money is the fair rent for other classes of land. In the case of wet land where the irrigation is supplemented by lifting water, the fair rent is 35 percent, of the normal gross produce or its value in money. 331/3 percent, of the normal gross produce or its value in money is the fair rent for other classes of land. Rule 10 of the Rules framed under the Act provides for the determination of the normal gross produce. It is in these terms: “For determining the normal gross produce in respect of any land for any specified crop, the Court or the Tribunal as the case may be, shall ascertain the quantity of the produce which would be obtained if such crop were grown, in a year in which the rainfall and the seasons are of a normal character in a land of the same class as the land in question similarly situated and possessing similar advantages. For the purpose of such determination, the Court or the Tribunal may take into consideration the soil classification, of the land and the normal or standard outturn of paddy in these cases of wet land and the standard dry or irrigated crop in the case of dry unirrgated or irrigated land as the different classes and sort of soil as finally adopted at the last land revenue settlement of the tract in which the land is situated. The Court or the Tribunal may also take into consideration (a) the Government records containing season and crop reports and rainfall accounts ; (b) the accounts of landowners, intermediaries and cultivating tenants wherever available for similar lands enjoying similar advantages ; (c) the oral or documentary evidence adduced by any of the interested parties and decree of civil Courts.” With effect from 1st October, 1956 every cultivating tenant shall be bound to pay to the landowner and every landowner shall be entitled to collect from the cultivating tenant only the fair rent payable under the Act. It will be open to the landowner as well as the cultivating tenant to apply to the Rent Court, a Tribunal created under the Act, for fixation of the fair rent. This application may be made notwithstanding any agreement between the landowner and the cultivating tenant or any decree or order of a Court. From every decision of a Rent Court an appeal is provided for to the Rent Tribunal which is also constituted under the Act. This application may be made notwithstanding any agreement between the landowner and the cultivating tenant or any decree or order of a Court. From every decision of a Rent Court an appeal is provided for to the Rent Tribunal which is also constituted under the Act. Section 13 of the Act expressly provides that the Act shall have effect notwithstanding anything to the contrary contained in any pre-existing law, custom, usage, agreement or decree or order of a Court. These provisions are quite clear and unambiguous. The landowner cannot get from the cultivating tenant anything in excess of the fair rent which in cases of dispute between the parties has to be fixed by the appropriate Tribunal constituted under the Act in accordance with the statute and the rules framed thereunder. A waram tenure is only a relationship between the landlord and the tenant based upon agreement. It is of course futile to put forward such an agreement in bar of the operation of the statute which is in supersession of all agreement between the parties and even of orders and decrees of Courts. It seems to us that the right to obtain the fixation of fair rent either at the instance of the landowner or the cultivating tenant is paramount and that it cannot be defeated on the ground that the effect of the fixation would involve a change of tenure. The petitioners rely upon sections 5 and 7 of the Act and contend that it is implicit in these provisions that in cases of waram tenure fixation of fair rent would be impossible. The petitioners rely upon sections 5 and 7 of the Act and contend that it is implicit in these provisions that in cases of waram tenure fixation of fair rent would be impossible. “Section 5 (1): The fair rent in respect of any land may be paid either in cash or in kind or partly in cash and partly in kind, in accordance with the terms of the contract between the landowner and the cultivating tenant; in the absence of such a contract, the fair rent may be paid at the option of the cultivating tenant in any one of the above ways: Provided further that where the crop raised is paddy, the landowner shall have the right to insist that the rent shall be paid in kind........” Section 7 of the Act enacts: "Where the produce to be shared is grain the sharing shall be done at the threshing floor on which the threshing took place ; and no portion of the produce shall be removed therefrom at such time or in such manner as to prevent the due division thereof at the proper time.“ The argument on behalf of the petitioners runs as follows: A waram tenure provides for the payment of rent in kind. The crop raised on wet lands in this case is paddy. The landowner is entitled to insist that the waram rent due to him shall be paid in kind. The landowner is further entitled to share the grain at the threshing floor with the cultivating tenant who is prohibited from removing the grain from the threshing floor before the division is effected. The fixation of fair rent will enable the cultivating tenant to deliver the 40 per cent, of the normal gross produce or pay its value in money. The right secured to the landowner under sections 5 and 7 should override the right of the cultivating tenant to pay the fair rent in money. Therefore a cultivating tenant holding under a waram tenure cannot obtain the benefit of fixation of fair rent under the Act. This argument is clearly untenable in view of the specific provisions of the Act. Section 5 which provides for payment in cash or in kind or partly in cash and partly in kind refers to the fair rent. Therefore a cultivating tenant holding under a waram tenure cannot obtain the benefit of fixation of fair rent under the Act. This argument is clearly untenable in view of the specific provisions of the Act. Section 5 which provides for payment in cash or in kind or partly in cash and partly in kind refers to the fair rent. Section 7 no doubt entitles the landowner to share the produce at the threshing floor when the produce to be shared is grain but it is implicit in that section that it is only the fair rent that is payable on such division. Sections 5 and 7 will govern the parties only when there is no dispute as to the fair rent payable by the tenant to the landowner. The next contention urged on behalf of the petitioners is that the agreement recorded before the Conciliation Officer itself, provides only for the payment of 40 per cent, of the produce to the landowner, and that " fair rent " has been fixed betwee 1 the parties as a result of such agreement. We shall now refer to the material terms of the agreement Exhibit R-1: " We shall divide the total produce in accordance with law and take our (tenant’s share) that is the mirasdar shall take 40 per cent, and the cultivator shall take the 60 per cent. This is the manner in which we have been dividing till the current agricultural year." The mere fact that the gross produce of the holdings is to be divided between the parties in the ratio of 40 per cent, and 60 percent, cannot certainly mean that fair rent has been fixed. The fair rent contemplated under the Act is 40 percent, of the normal gross produce and there is special mode under the rules to determine the normal gross produce. Further, division of the total produce grown on the land in each year in the ratio of 40 percent, and 60 percent, cannot represent the payment and acceptance of fair rent as provided for under the Act. The learned Judge, Kailasam J., has taken the view that the agreement between the parties recorded before the Conciliation Officer really amounts to fixation of fair rent under section 4 (1) of the Act. With respect, we are unable to agree. The learned Judge, Kailasam J., has taken the view that the agreement between the parties recorded before the Conciliation Officer really amounts to fixation of fair rent under section 4 (1) of the Act. With respect, we are unable to agree. We are of opinion that the decision in Ramayyan v. Seshappayyar1, governs the present case. With respect we agree with the following observation of the learned Judge: "There is no provision prohibiting the Rent Court from settling or fixing a fair rent in a case to which the waram system applied. It cannot be contended that the section regulates only rent in a case where fixed rent was agreed to between the parties in respect of leasing of land and not to a case where the waram system was applicable.” The Revision Petitions fail and are dismissed with costs only in C.R.P. No. 320 of 1960. There will be no order as to costs in the other two petitions. R.M. ----------- Petitions dismissed.