Komanduru Sampath Ay... v. Umade Raja Raje Sri ...

1. These second appeals relate to the question whether the Rajah of Venkatagiri is entitled to claim the full amount of jodi for faslis 1332 and 1333 due from the appellants (defendants 1 and 3 in both the suits) who are the agraharamdars of the villages of Sakti Ganeshwarapuram and Kunnam Kulattur. The liability to pay the jodi was not disputed by the agraharamdars; but they contended that they are entitled to deduct from the amount claimed the amount of peishcush due on these villages which they had paid to the Government for the faslis in question. The deduction was claimed under Section 35, Act 2 of 1864, and Section 70, Contract Act. On the first ground, which was the only ground pressed in the lower appellate Court, the Subordinate Judge found against the agraharamdars' contention. Both the grounds are urged before me in second appeal.

2. The facts are briefly these: The two villages of Sakti Ganeshwarapuram and Kunnam Kulattur formed part of the Kalahasti Zamindari and were purchased by the plaintiff at a Court sale. After the purchase he did not get the villages separately registered in his name by the Collector under Madras Act 1 of 1876, and so the Zamindar of Kalahasti remained as the registered holder of these two villages. When the Rajah of Kalahasti failed to pay the peishcush on the zamindari for the suit faslis these villages were attached by the Government. The agraharamdars then paid the proportionate peishcush due on these villages and got them released from the attachment. They now contend that the peishcush due from these villages was rightly due from the plaintiff after his purchase at the Court sale and since that peishcush was paid by them the amount so paid should be deducted from the jodi now claimed by him.

3. The first question is whether the claim of the appellants is justified under Section 35, Revenue Recovery Act 2 of 1864. Section 35, Act 2 of 1864, so far as it is relevant to the present argument, is as follows:

It shall be lawful for any person claiming an interest in land which has been, or is about to be attached, to obtain its release by paying the arrears, interest and costs incurred; and all such sums, if paid by a tenant, may be deducted from any rent then or afterwards due by him to the defaulter.

4. This section entitles a tenant, if he has obtained a release of his land from the attachment by paying the arrears of revenue due on it, to deduct the sum paid by him from the rent due by him to the defaulter. Assuming that the agraharamdars may be called tenants within the meaning of the section about which I am very doubtful, it is clear they have to show in this case that the plaintiff is the "defaulter" in order to claim the benefit of this section. The term "defaulter" is' not defined in the Act. It has been held in Subramania Chetty v. Mahalinga Sami Sivan [1910] 33 Mad. 41 that where one person is the real owner of a1 share in land and another is the registered proprietor of the whole, the latter and not the former is the "defaulter" within the meaning of the Revenue Recovery Act.

5. According to this decision, though the plaintiff is the real owner of the two villages, inasmuch as their transfer has not been registered in his name, the transfer is invalid against the Government, and so the registered pattadar remains the landholder within the meaning of the Revenue Recovery Act, and the person liable to pay the revenue under Section 3 and becomes a defaulter within the meaning of the Act if he does not so pay. This case1 has been followed in Jagapati Raju v. Sadrusannama Arad [1916] 39 Mad. 795. If this is the position, then it must follow necessarily that the defendants cannot recover the peishcush paid by them from the plaintiff as the Rajah of the Kalahasti is the defaulter and the plaintiff is not under any obligation to pay the proportionate revenue to Government. The Government rightly treated the Rajah of Kalahasti as the defaulter in spite of the purchase of the village in question by the plaintiff as the Rajah of Kalahasti still remained as the registered pattadar. It may be that the agraharamdars may have a remedy against the Rajah of Kalahasti to recover the amount of peishcush paid by them but the plaintiff is not a defaulter within the meaning of Section 35, Act 2 of 1864, and they cannot claim to deduct that amount from the rent due by them to him.

6. The next ground urged is that the appellants are entitled to recover the amount from the plaintiff under Section 70, Contract Act, and so this amount must be deducted from the jodi. Section 70, Contract Act, is as follows:

Where a person lawfully does anything for another person or delivers anything to him not intending to do so gratuitously and such other person enjoys the benefit thereof the latter is bound to make compensation to the former in respect of or to restore the thing so done or delivered.

7. That the payment of the peishcush was lawfully made is not disputed; that the payment was not intended to be gratuitous is also not disputed. What we have to determine is: (1) whether the agraharamdars made the payment for another person" (that is the plaintiff) and (2) whether he enjoyed the benefit of the payment within the meaning of Section 70, Contract' Act. As regards the, first, it is argued on his behalf that if the peishcush was not paid the villages' would have been sold and the agraharamdars would have been deprived of the properties and since the payment was made to prevent that result it must be considered that the payment cannot be said to have been made for the plaintiff and so there is no obligation on his part to pay the amount to the defendants. On the other hand the appellants argue that as the peishcush on those villages was primarily liable to be paid by the plaintiff and as they paid it and thus saved the property for him, it must be considered that the payment was made by them on his behalf and for him. The question whether what has been done by a "person" has been done for "another person within the meaning of Section 70, Contract Act, is a question of fact in each case: see Damodara Mudaliar v. Secretary of State [1895] 18 Mad. 88, Jogambal Boyee Ammani Ammal v. Naina Pillai Marakdyar [1910] 33 Mad. 15, Sri Sri Chandra Deo v. Srinivasacharlu [1914] 38 Mad. 235 and Avudayappa Pillai v. Thandavaraya Pillai A.I.R. 1928 Mad. 320. In Jogambal Boyee v. Naina Pillai [1910] 33 Mad. 15 Munro and Sankaran Nair, JJ. observed as follows:

Where the person paying interest is making the payment he cannot be presumed, in the absence of evidence to show that he intended to act for the other party also, to have acted for such other party.

8. In Sri Chandra v. Srinivasacharlu [1914] 38 Mad. 235 Miller, J., observed that in doing the thing where one's own interest is manifestly predominant, it may be difficult for him to show that What he did was done for another person. In the same case Sadasiva Iyer, J., observed:

I do not think that these cases intended to lay down generally that where a person is interested in making a payment it cannot be held under any circumstances that he intended to act for the other party also.

9. Because the appellants are benefited by the payment of peishcush it does not necessarily follow that the argument that the payment was made for another person is unsustainable. In this connexion attention may be drawn to the case reported in Saptharishi Reddiar v. Secretary of State [1915] 28 I.C. 309 where Ayling, J., pointed out that because the person who does the act is also benefited by the act, the. section does not become inapplicable.. These observations would show that for determining the point no rules of general application can be laid down. The question is really one of fact and should be decided according to the particular circumstances of each case. In this case there is oral evidence on the part of the defendants that when they paid the peishcush they paid it for the Rajah of Venkatagiri. One of the money-order receipts in the case Ex. 1-b, shows that the sender of the money desired that the amount sent should be credited to the Venkatagiri Rajah : see Col. 1. If the appellants did not. pay peishcush the zamindar would lose the jodi and other benefits arising from the ownership of the villages. The villages would be sold and he would cease to be their, owner. Having regard to the fact that the amount of; peishcush was payable by the plaintiff and it was paid as such by the defendants though it must have been in the interests of the defendants to pay it, it does not seem to me that that is a reason for saying that it was a payment made for the plaintiff. In this case though I am prepared to find that the peishcush was paid by the defendants for the plaintiff, it is not necessary to express a definite opinion on the question as I am satisfied, as I shall presently show, that the appellants have not succeeded in showing that the plaintiff enjoyed the benefit of their payment within the meaning of Section 70, Contract Act.

10. To prove that the plaintiff has enjoyed the benefit of the defendant's act the appellants rely on the decision in Srichandra v. Srinivasacharlu and argue that,if the plaintiff had the benefit of their act, which he undoubtedly had, it must necessarily, follow that the section applies. It is true that the decision lends support to this argument. In that case the learned Judges relying on the plain meaning of the words in the section and such other person enjoys the benefit there-of, in support of their view, differed from the view of Munro and Sankaran Nair, JJ., in Jogambal Boyee v. Naina Pillai, in which they held, following the English law and referring to the notes in Lampleigh v. Braithwaite [1916] 1 Sm. L.C. 160 in Smith's Leading Cases, as the source of the section that in order to make the section applicable it is necessary that the party sought to be made liable must not only have been benefited by the payment, but must also have had the opportunity of accepting or rejecting such benefit and that where no such option is left to him, and the circumstances do not. show that he intended to take such benefit, he cannot be said to have 'enjoyed such benefit' within the meaning of the section : see the head-note.

11. If the decision in Srichandra v. Srinivasacharlu which refused in interpreting the words of Section 70 to import into it the limitations laid down by the English law is still good law then the appellants are bound to succeed. There has been some controversy in this Court on this question; but as pointed out by Abdur Rahim and Oldfield, JJ., in Viswanatha Vijaya Kumara Bangaroo v. R.G. Orr [1918] 45 I.C. 783, the weight of the decisions undoubtedly preponderates in favour of the views expressed by Munro and Sankaran Nair, JJ. in Jogambal Boyee v. Naina Pillai and Sankaran Nair and Spencer, JJ., in Rajah of Pittapuram v. Secretary of State [1914] 25 I.C. 783. Subsequent to the decision in Srichandra v. Srinivasacharlu, the question with reference to that decision was considered by Munro and Sankaran Nair, JJ., in Rajah of Pittapuram v. Secretary of State [1914] 25 I.C. 783. The view enunciated in Jogambal Boyee v. Naina Pillai, was affirmed and further explained in Rajah of Pittapuram v. Secretary of State [1914] 25 I.C. 783. In that judgment Spencer, J., pointed out that, with regard to the choice of accepting or rejecting the benefit which should be given to the person sought to be made liable, certainly there is no law that the acceptance must precede the conferring of the benefit and there is nothing in the judgment in Jagambal Boyee v. Naina Pillai to suggest it. In fact the use of the word "adopt" implies that the acceptance follows the deed, and in this view he held that as the plaintiff failed to establish in that case that the defendant adopted and enjoyed the benefit of the act which plaintiff did" "the suit was rightly dismissed.

12. This decision was followed by Sadasiva Iyer, J. who was himself a party to the decision in Srichandra v. Srinivasacharlu and in Narain Pai v. Appu [1915] 28 I.C. 456 where he stated with reference to his own decision that the trend of recent decisions has gone the other way.

13. In Saptharishi Reddiar v. Secretary of State, Ayling and Tyabji, JJ., doubted the correctness of the decision in Jogambal Boyee v. Naina Pillai on the point in question. By that time Sadasiva Iyer, J., had given up his view in British India Steam Navigation Co. v. Secretary of State for India and followed Rajah of Pittapuram v. Secretary of State. This has not been noticed in Saptharishi Reddiar v. Secretary of State. Then came the decision of this Court in Jagpati Raju v. Sadrusannamma Arad, wherein it was pointed out by Srinivasa Iyengar, J., that Sadasiva Iyer, J., has followed Harendra Lal Roy v. Hari Dasi Debi A.I.R. 1914 P.C. 67, and the decision in Viswanatha v. Orr, already referred to, in which the general position was summed up by Abdur Rahim and Oldfield, JJ., as favouring the view expressed in Jogamhal Boyee v. Naina Pillai and the Rajah of Pittapuram's case. The latest decision of this Court on this point is in Sundara Aiyar v. Anantapadmanabha Ayyar A I.R. 1923 Mad. 64 in which Odgers, J., followed the decision in Rajah of Pittapuram's case, and observed that it was laid down in that case that the party sought to be made liable must not only have benefited but must have had the opportunity of accepting or rejecting the benefit. In this connexion my attention was drawn to the decisions in Smith v. Dinonath Mukerjee [1886] 12 Cal. 213 at p. 217, Suchand Ghosal v. Balaram Mardana [1911] 38 Cal. 1, Kedar Nath Mistri v. Narayanachandra A.I.R. 1930 Cal. 344, Bhicoobai v. Hariba Raghuji [1918] 42 Bom. 556, some of which have been considered in the Madras decisions.

14. But having regard to the definite view of our High Court on this point, I do not think it is necessary to discuss these cases. The appellants have no doubt shown that the plaintiff has been benefited by the act, but in order to succeed they must also show that he has had the opportunity of accepting or rejecting the benefit as explained in Jogambal Boyee's case and Rajah of Pittapuram's case. In this case there is no evidence that any such option was given to him. There is nothing to show that the respondent adopted the benefit of the payment made by the appellants. No evidence has been offered on this point. Apparently the parties did not realize the significance of this aspect of the question. According to the trend of the decisions of this Court the appellants cannot therefore rely on Section 70, Contract Act, in support of their claim for deduction of. the peishcush paid by them.

15. In Second Appeal No. 182 of 1929 there is a further question for decision. In this case the lower Court passed a joint and several decree against the appellants with respect to the payment of the amount of jodi decreed against them. It is argued that their liability to pay the jodi should have been apportioned. This argument cannot be accepted. In Venkata Subramaniam v. Rajah of Venkatagiri [1920] 56 I.C. 552 it was held that agraharam are ordinarily held on a single and indivisible tenure, and agraharamdars are jointly and severally liable to the zamindar for the jodi due on the entire agraharam in the absence of any contract to which the zamindar is a party, apportioning the jodi on the various subdivisions of the agraharam made by the agraharamdars inter se. The present agraharamdars are all the descendants of the original agraharamdars.

16. It is not pleaded that there was any arrangement, between the agraharamdars and the zamindar, and consented to by him, which entitles them to say that the jodi amount should be apportioned. The cases relied on by the appellant, namely Suryanarayana v. Sree Rajah Venkata Ramayya Appa Rao Bahadur [1928] 115 I.C. 351 and Musafkanni Ravuther v. Doraisami A.I.R. 1927 Mad. 931, in support of their contention that the liability of each of the appellants should be limited only to the jodi proportionately payable on the lands in his possession are inapplicable to the present case as the persons claiming apportionment in those cases were alienees of separate portions of the agraharam which is not the case here. The lower Court's decree on this point is therefore right and cannot be set aside. This question does not arise in the connected second appeal as in that case apportionment of the jodi was awarded in pursuance of the decision in Ex. 4 which binds the parties. In the result both the second appeals are dismissed with costs.