- Bookmark
- Share
- CaseIQ
Sakkarai Chettiar And Others v. Chellappa Chettiar And Another
Structured Summary of the Opinion
Factual and Procedural Background
This was a suit for rent under Section 77, Madras Estates Land Act. The disputed lands are situated in the village of Sinnayaviduthi and its hamlet Krishnapuram in the Neduvasal (Neduvasal) Zamin. The principal factual disputes concerned (a) 1 1/4 velis claimed by the defendants as held rent-free as "umbalam" lands, and (b) 5 velis claimed by the defendants to be held under a permanent "cowle" at the rate of Rs. 5 per veli.
At first instance the learned Deputy Collector found against the landholder on both points. On appeal the learned District Judge held for the tenants (defendants) with regard to the umbalam lands, and for the landholder with regard to the cowle. The tenants (defendants 2, 3 and 4) preferred this appeal to the High Court.
A preliminary objection was raised about the maintainability of the appeal after defendant 4 died and his legal representatives were not brought on record in time. The respondent relied on Order 22, Rule 3, Civil P.C. and several authorities to contend the appeal as a whole abated. The High Court considered a line of its own authorities bearing on the power to vary decrees under Order 41, Rule 4, Civil P.C., and addressed the objection before deciding the substantive questions.
Legal Issues Presented
- Whether the appeal was maintainable after the death of one of the appellants and the failure to bring his legal representatives on record — specifically the effect of Order 22, Rule 3, Civil P.C. and the Court's power under Order 41, Rule 4, Civil P.C.
- Whether Section 4 of the Madras Impartible Estates Act prohibited the grant of a cowle at a favourable rate of rent or the grant of umbalam lands rent free.
- Whether the cowle in question came into existence in 1913 (and so would not be saved by Section 26(1) of the Estates Land Act) or whether it existed prior to 1908 (and thus was covered by Section 26(1) and binding beyond the lifetime of the landholder).
- Whether any alternative legal basis (for example, prescription) could sustain the defendants' right to hold the 5 velis at Rs. 5 per veli (this argument was raised but not pursued in pleading or in the lower appeal).
Arguments of the Parties
Appellants' Arguments (defendants who appealed)
- The appellants contended that the Court's power under Order 41, Rule 4, Civil P.C. permits the Court to vary a decree even if the appeal of one of several appellants has abated by reason of death and that the High Court should exercise this discretion in favour of the appellants; on this basis the appeal was maintainable.
- The appellants (through Mr. K.V. Krishnaswami Aiyar) argued that Section 4 of the Impartible Estates Act did not prohibit either the cowle at a favourable rent or the grant of umbalam lands rent free.
- The appellants contended the cowle pre-dated 1913 — in fact existed before 1893 and therefore arose under a contract made before Act 1 of 1908 — and so fell squarely within Section 26(1) of the Estates Land Act, making the cowle permanent/binding beyond the lifetime of the landholder.
- They relied on documentary (Exs. I and II and the endorsement on Ex. D) and oral evidence indicating the cowle was an old grant made to the appellants' grandfather; they argued there was no evidence to show the cowle was created only in 1913.
Respondent's Arguments (the landholder)
- The respondent raised a preliminary objection to the maintainability of the appeal based on the death of one appellant and Order 22, Rule 3, Civil P.C., relying on authorities (including Aminchand v. Baldeo Sahai Ganga Sahai and other cases) to contend the appeal abated.
- The respondent argued that Section 4 of the Impartible Estates Act would prohibit the cowle and the grant of umbalam lands rent free (i.e., that such alienations were forbidden by that Act).
- The respondent further argued that the cowle came into existence in 1913 (when Ex. II was executed) and therefore was not saved by Section 26(1) of the Estates Land Act; consequently, under Section 26(3) the favourable rate would not bind persons entitled to the rent after the lifetime of the landholder.
- As a subsidiary point, counsel for the respondent (Mr. A.V. Viswanatha Sastri) emphasized that the exercise of the Court's discretionary power under Order 41, Rule 4 was a matter for the Court's discretion (though the High Court concluded it should exercise the discretion in favour of the appellants in this case).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Aminchand v. Baldeo Sahai Ganga Sahai (1934) 21 A.I.R. Lah 206 | Cited by the respondent in support of the contention that the appeal abated upon the death of one of the appellants (relying on abatement principles). | The Court noted this authority was relied upon by the respondent but indicated the view of this High Court differs; it did not accept this as decisive in the present matter. |
| Balaram Pal v. Kanysha Maahi (1919) 16 A.I.R. Cal 410 | Cited by the respondent as supporting the abatement contention. | The Court recorded that such cases were relied upon by the respondent but rejected the contention in light of the High Court's own precedents permitting variation under Order 41, Rule 4. |
| Saru Khan v. Jan Muhammad (1928) 16 A.I.R. Lah 43 | Cited by the respondent in support of the abatement argument. | The Court noted the citation but followed the High Court's line of authority to overrule the preliminary objection. |
| Somasundaram Chettiar v. Vaithilinga Mudaliar (1918) 5 A.I.R. Mad 794 | Held that the provisions of Order 41, Rule 4 enable the Court to vary the decree even though the appeal of one of the appellants might have abated by reason of death. | The Court relied on this Bench decision as establishing that the High Court may still vary a decree under Order 41, Rule 4 and applied that principle to overrule the preliminary objection to maintainability. |
| Chengamma Naidu v. Gangulu Naidu (1925) 12 A.I.R. Mad 235 | Followed Somasundaram Chettiar; that the Court's power under Order 41, Rule 4 can be invoked despite abatement of one appellant's appeal. | The Court noted Spencer J.'s decision and that it was followed and confirmed by a Bench of the High Court; it formed part of the line of authority relied on to reject the abatement argument. |
| Chenchuramayya v. Venkatasubbayya Chetti (1933) 20 A.I.R. Mad 655 | Followed the earlier Madras High Court decisions on the scope of Order 41, Rule 4 in cases of abatement. | The Court cited this decision as part of the settled view of this High Court that the abatement objection was not decisive and applied that reasoning to overrule the preliminary objection. |
Court's Reasoning and Analysis
The Court proceeded in two principal stages: (A) the preliminary question of the maintainability of the appeal after the death of one appellant, and (B) the substantive questions about the validity of the cowle and the effect of the Impartible Estates Act and the Estates Land Act.
(A) Maintainability: The respondent relied on Order 22, Rule 3, Civil P.C. and a body of authorities to contend the appeal abated when one of the joint appellants died and his representatives were not brought on record. The High Court examined its own precedents and found the view of this Court to be that Order 41, Rule 4 empowers the Court to vary a decree as a whole even though the appeal of one appellant might have abated by death (as held in Somasundaram Chettiar v. Vaithilinga Mudaliar). That line of cases (including Chengamma Naidu and Chenchuramayya) established that the Court may exercise discretion under Order 41, Rule 4. The Court considered the exercise of that discretion to be appropriate in this case and therefore overruled the preliminary objection.
(B) Substantive questions — Impartible Estates Act and Estates Land Act:
- The landholder argued that Section 4 of the Madras Impartible Estates Act would prohibit the grant of the cowle and the grant of umbalam lands rent free. The Court agreed with the appellants' contention (as pressed by Mr. K.V. Krishnaswami Aiyar) that Section 4 could not be held to prohibit either the cowle at a favourable rate of rent or the grant of umbalam lands rent free.
- With respect to the cowle's temporal origin, the critical statutory issue was whether the cowle was a grant falling within Section 26(1) of the Estates Land Act (i.e., made under a contract prior to commencement of Act 1 of 1908) and thus binding for the period stipulated, or whether it came into existence in 1913 and therefore would be subject to Section 26(3) (ceasing to bind after the lifetime of the landholder if the rate was lower than lawful rate).
- The District Judge had found that the cowle came into existence in 1913. The High Court reviewed the documentary evidence (Exs. I and II, the perpetual cowle executed 29 May 1913, and the endorsement of discharge on Ex. D) and oral evidence. Exs. I and II referred to the cowle as an old grant made to the appellants' grandfather, and there was oral evidence supporting that position. There was no evidence to the contrary in the record. The Court found the District Judge's conclusion that the cowle was not in existence before 1913 to be without evidentiary basis.
- Given the evidence that the cowle pre-dated 1913 and arose under arrangements made before 1908 (including the context that the purchaser of the villages discharged earlier usufructuary mortgages in consideration of the surrender and perpetuation of the cowle and umbalam grants), the Court concluded the cowle was binding as an encumbrance on the estate at the time of the purchase by the landholder's predecessor-in-title and was saved by Section 26(1) of the Estates Land Act.
- The Court refused to entertain the prescription argument raised at the end of submissions because no foundation for that plea had been laid in the written statement and no such plea was taken before the District Judge.
Holding and Implications
Holding:
APPEAL ALLOWED — The High Court overruled the preliminary objection to the maintainability of the appeal, held that the cowle pre-dated 1913 and was therefore within the protection of Section 26(1) of the Estates Land Act, and concluded that Section 4 of the Impartible Estates Act did not prohibit the cowle or the grant of umbalam lands rent free. The appeal was allowed with costs in this Court and in the First Appellate Court. Leave to appeal was refused.
Implications (direct consequences for the parties):
- The tenants (appellants) succeeded on the key issue concerning the cowle: the cowle was held to have existed before 1913 and to be valid and binding as an encumbrance on the estate at the time of the purchase by the landholder's predecessor-in-title.
- The preliminary procedural objection that the appeal abated because one appellant died was overruled; the Court exercised its discretion under Order 41, Rule 4 in favour of permitting the appeal to be considered.
- The Court awarded costs against the respondent in both the High Court and the First Appellate Court and refused leave to appeal further.
- No novel legal principle was announced beyond applying the existing line of Madras High Court authorities on Order 41, Rule 4 and on the proper statutory construction/application of Section 26(1) of the Estates Land Act and Section 4 of the Impartible Estates Act to the facts; the decision rests on the High Court's assessment of the documentary and oral evidence and on established precedent within this High Court.
Note: This summary is prepared strictly from the contents of the provided opinion and does not add or infer facts or legal conclusions beyond those stated in the opinion text.
1. This was a suit for rent Under Section 77, Madras Estates Land Act. The fact have been clearly and fully sat out in the judgments of the learned Deputy Collector and the learned District Judge and need not be repeated in detail now. The lauds on which rent was claimed are situated in the village of Sinnayaviduthi and its hamlet Krishnapuram in the Neduvasal Zamin. The principal points in dispute between the plaintiff who was the landholder, and the defendants, related to 1 1/4 veils of land which the defendants claimed to be holding rent free as umbalam lands and 5 velis of land which they claimed to be holding under a permanent cowle at the rate of Rs. 5 per veli. The learned Deputy Collector found against the land-holder on both these points. On his appeal the learned District Judge found in favour of the tenants with regard to the umbalam lands and in favour of the landholder with regard to the cowle. The tenants preferred this appeal.
2. A preliminary objection was raised with regard to the maintainability of this appeal. The appeal was preferred by defendants 2, 3 and 4 who were the only defendant interested and after the appeal was filed defendant 4 died. No application was made to bring his legal representatives on record within the time allowed and a belated application for that purpose was dismissed. The appeal of defendant 4 therefore abates, and it was contended on behalf of the respondent that since defendants 2, 3 and 4 claimed to be jointly interested in the lands, being undivided brothers, the appeal as a whole must be held to have abated. Order 22, Rule 3, Civil P.C. was quoted in support of this contention and she ruling in Aminchand v. Baldeo Sahai Ganga Sahai (1934) 21 A.I.R. Lah 206 was relied upon as well as the cases in Balaram Pal v. Kanysha Maahi (1919) 16 A.I.R. Cal 410 and Saru Khan v. Jan Muhammad (1928) 16 A.I.R. Lah 43. Whatever may be the views of other High Courts upon this question, the view of this High Court is against the contention of the respondent. In Somasundaram Chettiar v. Vaithilinga Mudaliar (1918) 5 A.I.R. Mad 794 a Bench of this Court held that the provisions of Order 41, Rule 4 enabled the Court to vary the decree as a whole even though the appeal of one of the appellants might have abated by reason of death. This case was followed by Spencer J. in Chengamma Naidu v. Gangulu Naidu (1925) 12 A.I.R. Mad 235 and the judgment of Spencer J. was confirmed by a Bench of this Court in L.P.A. 96 of 1924. These cases were followed by Curgenven and Sundaram Chetty JJ. in Chenchuramayya v. Venkatasubbayya Chetti (1933) 20 A.I.R. Mad 655 This matter is therefore settled against the contention of the respondent so far as this High Court is concerned.
3. Mr. A.V. Viswanatha Sastri for respondent then points out that, in any case it is a question for the discretion of the Court to exercise its power to refuse to exercise its power Under Civil P.C.O. 41, Rule 4. That is so and the present case is, I think, "a fit one for the exercise of this discretion in favour of the appellants. I therefore overrule the preliminary objection.
4. Naduvasal Zmmin is one of the estates scheduled under the Madras Impartible Estates Act and it was contended on behalf of the landholder that the cowle as well as the grant of the umbalam lands rent free would be prohibited by Section 4 of that Act, The learned District Judge agreed with the learned Deputy Collector that Section 4, Impartible Estates Act, would not prohibit either of these alienations though the learned District Judge's reasons were not quite the same as the reasons of the learned Deputy Collector. It is quite clear as Mr. K.V. Krishna, swami Ayyar contends for the appellants that Section 4, Impartible Estates Act, cannot be held to prohibit either the cowle at a favourable rate of rent or the grant of umbalam lands rent free. It is clear beyond the possibility of any doubt that the defendants held two usufructuary mortgages (Exs. C and D) of the village of Sinnayaviduthi and Krishnapuram in 1913 when the plaintiff's predecessor-in-title wished to purchase these villages. The usufructuary mortgage Ex. D had still 16 years to run and Ex. C some shorter period. It was only in consideration of the perpetuation of the grant of umbalam lands and of the cowle that the defendant's predecessor in title agreed to surrender his rights Under Exs. C and D. This is proved by the agreement (Ex. I) and the perpetual cowle (Ex, II) executed on 29th May 1913 by the zamindar Sankaranarayana Panikondar and his son Tiruvengada Panikondar. But for the surrender of the usufructuary mortgages, the zamindar would not have been able to sell the villages to the plaintiff's predecessor, in. title who Undertook the discharge of Exs. C and D as part of the purchase price. It follows from this that if the sale to the plaintiff's predecessor-in-title is valid and not prohibited by Section 4, Impartible Estates Act, the alienations of the umbalam lands and cowle also are equally valid. Mr. Krishnaswami Aiyar's contention is that if the grant of the cowle is not prohibited Under Section 4, Impartible Estates Act, there is no other provision of law which can invalidate it. On behalf of the respondent, the contention is that this cowle cannot ensure after the lifetime of Sankaranarayana Panikondar who was the zamindar when Ex. II was executed in 1913. Section 26, Estates Land Act, deals with cowles granted (i) for the purpose of clearing and bringing waste land in an estate into cultivation, (ii) or for the purpose of making any permanent improvement, (iii) or for planting trees on a holding in an estate under a contract made prior to the commencement of act 1 of 1908 for any premium, loan or other valuable consideration. Such cowles are valid Under Section 26 (1) for the period for which the favourable rate is payable in accordance with their terms. Sub-section 3 provides that except as provided by Sub-section (1) no rate of rent at which land may have been granted by a landholder shall be binding upon the person entitled to the rent after the lifetime of the landholder if such rate is lower than the lawful rate payable by the raiyat before the date of the grant upon the land or upon land of similar description and with similar advantages in the neighbourhood. There is no contention on the part of the appellants that the cowle in favour of their father was a cowle for the purpose of clearing and bringing waste land into cultivation or for the purpose of making a permanent improvement or for planting trees. Their contention is that it is a cowle granted under a contract made before the beginning of act 1 of 1908 and that it is there, fore binding for ever since it is a permanent cowle. The learned Deputy Collector accepted this contention but the learned District Judge found that the cowle came into existence in 1913 and held accordingly that it was not saved by Sub-section (1) of Section 26, Estates Land Act. It is this finding which is attacked by the appellants and which is supported by the respondents.
5. Whether this cowle came into existence in 1913 or was in existence before, is undoubtedly a question of fact and on this ground, the learned advocate for the respondents contends that the finding of the learned District Judge must be taken as conclusive and cannot be attacked in second appeal. Unfortunately, the finding of the learned District Judge on this point is, as the learned advocate for the appellants contends, in the teeth of all the evidence. The learned District Judge himself has pointed out that both Ex. I and Ex. II refer to the cowle as an old grant made to the grandfather of the present appellants. There is a distinction between the cowle and the umbalam. The umbalam is restarred to Exs. C and D, the mortgages executed in 1893 and 1909. The cowle is not mentioned in those mortgages. There he no record of payment of rent at the rate of Rs 5 per veli on these 5 velies but, as the learned District Judge himself has recognized, it is impossible that there should be any record because the villages were held by the tenant under the usufructuary mortgages. There is however a distinct reference to the cowle in Exs. I and II and there is oral evidence also to the effect that the cowle had been granted to the appellant's grandfather. There is no evidence whatever to the contrary. The learned District Judge's observation "I do not think it is proved that the cowle was in existence before 1913," is therefore based upon no evidence whatever. The only meaning it can have is that there was no document in existence before 1913 is the evidence shows that the grant itself had been made before 1893, i.e., long before Act 1 of 1908 or the Impartible Estates Act came into force and in these circumstances it is obviously right to presume that the grant was supported by consideration. I therefore disagree with the finding of the learned District Judge that the cowle was not in existence before 1913. All the evidence is that it was and it is therefore not a grant which must come to an end Under Section 26(3), Estates Land Act, after the death of the landholder who was entitled to the rent in 1913. It is quite clear that the respondents' predecessor in title was aware of the existence of this cowle at the time of his purchase. There was a reference made to it in the endorsement of discharge written upon the usufructuary mortgage (Ex. D) by the defendants' father. Considered in that light the cowle is valid as an encumbrance on the estate at the time of the purchase by the landholder's predecessor-in-title.
6. Mr. Krishnaswami Aiyar attempted to argue that if the cowle did not come Under Section 26, Estates Land Act, it would be invalid and that since the defendants have been holding the 5 velies of land at the rate of Rs. 5 since 1913 they must be deemed to have prescribed for a right to bold the lands at the same rate. I do not think there is much force in this contention and I see no reason to discuss it because no foundation was laid in the written statement for any such plea nor was any such plea taken in the appeal to the learned District Judge. For the reasons already given, this appeal is allowed with costs in this Court and in the First Appellate Court. (Leave to appeal refused).
Alert