This Second Appeal, came on for hearing in the first instance before Sadasiva Ayyar and Napier, JJ., who delivered the following
Sadasiva Ayyar and Napier, JJ.:— The plaintiff is the appellant. He brought the suit to recover thunduvaram alleged to be due to him as mirasidar by the defendant who is a Government ryot in a mirasi village. A preliminary objection was raised by the respondent's learned vakil (Mr. T.R Ramachandra Ayyar) that no second appeal lies as the suit was of a small cause nature and the value of the claim is less than Rs. 500. In our opinion, mirasi right is an interest in the village lands, though it may not now be a proprietary interest therein. The thunduvaram payable to the mirasidar (assuming it to be payable) might have once been part of the kudivaram produce, but it is now claimed merely as the fee due to the mirasidar as such by custom. Hence it is not of the nature of ‘rent’ (like jodi), but comes under the general expression ‘dues’ in article 13 of the Provincial Small Cause Courts Act.
We therefore overruled the above preliminary objection. We are unable to agree with the learned District Judge that the plaintiff's claim to obtain thunduvaram (apart of the mirasidar's swatantram) from the defendant became barred in 1890, because the Government refused some time prior to 1878 to recognize the custom under which the mirasidar claimed such dues. Evidently the learned District Judge has applied article 131 of the Limitation Act as he states that ‘there must have been a refusal’ (by the defendant to pay the thunduvaram to the mirasidar) ‘prior to 1878.’ The learned Judge then, on this sole ground of the Government's disinclination in 1878 to recognize the custom in favour of the mirasidar, considered that he would be legally justified in finding that ‘there must have been a refusal’ (by the defendant) ‘prior to 1878.’ We think that such a finding must be treated as one based on no legal evidence and cannot be accepted. The recent Full Bench decision in Seshachala Chetty v. Chinnasami(1) does not deal directly with the mirasidar's right to thunduvaram (the question directly in issue in that case being the mirasidars' allaged right to eject occupiers of nattan poramboke land (sites held under pattas). There are, however, passages in two of the judgments in that case which relate to thunduvaram and which are entitled to great respect. We therefore refer to them. Mr. Justice Ayling says—
“There are undoubtedly certain incidents, which have been claimed as attaching to it “(the mirasi tenure) from ancient times, and have to some extent been recognized, one of such incidents being the right to certain fees (thunduvaram) on lands granted for cultivation to non-mirasi cultivators (payakaris) by the Government.”
Then the learned Judge says that this right also requires to be separately established by the mirasidar and that he ought to adduce proof of the existence of the custom to pay such dues, and he refers to Sakkaji Rau v. Latchmana Gaundan. Mr. Justice Kumaraswami Sastriyar refers to the opinion of the Collector of Chingleput in 1839 which admitted the mirasidars' right to collect thunduvaram, swatantrams, etc., in the sheikal lands. In another place, the learned Judge quotes the opinion of the Board of Revenue in 1892 as follows:—
“Briefly, the system, as it at present exists, rests on the claims of the mirasidars to all the waste lands in their villages and to the levy of swatantram or fees from payakaris or non-mirasidars who may take up land for cultivation. This claim was fully recognized in the new settlement carried out in 1876–78 (vide G.O No. 221, dated 15th February 1876) and after full consultation with the mirasidars, a memorial fee swatantram, fixed at an average rate of two annas on every rupee of Government assessment, was declared to be leviable by the mirasidars not only on every field lying waste in each village, but also on all lands now held by the mirasidars themselves and included in their pattas, should such land be subsequently relinquished and taken up by a non-mirasidar. The fee claimable on each field was duly entered in the settlement registers against every field liable to it. The only lands against which fees were not entered were those which had already been obtained by strangers and which were held under lease or patta from Government.”
Then the learned Judge refers to the Government orders passed on the 19th October 1909 about swatantrams as follows:—
“The right of the mirasidars to levy a fee at the rate of two annas in the rupee of the assessment, of both dry and wet lands had been recognized by Government except in the case of the undermentioned fields which are free of swatantrams so long as they are held under the terms of the original grants.”
Next the learned Judge referred to Sakkaji Rau v. Latchmana Gaundan in which it was held that
“where the right was denied there should be enquiry whether by custom it prevails on the estate or if there are not sufficient instances on the estate to afford grounds for a decision, on similar estates in the neighbourhood.”
In the result, following the decision in Sakkaji Rau v. Latchmana Gaundan which was reoognized as good law by the Judges who decided the above Full Bench case, we hold that where (as in this case) the tenant denies the right of the mirasidar to thunduvaram, the burden of proof is on the mirasidar to prove the existence in himself of the right by establishing a custom to pay such dues.
Now the learned District Judge in considering the evidence in this case as to custom has fallen into several material errors. He thinks that documents relating to other than the plaint lands which establish the claim of the mirasidar to thundmaram are not of much value. But the decision in Sakkaji Rau v. Latchmana Gaundand which states that evidence even as to neighbouring villages and estates is admissible is clearly against the District Judge's view. Then he seems to think that Exhibits H, E and K do not relate to plaint lands, but it has been shown that they do relate to some of the lands against which no swatantram is shown as due in Exhibit, J. It is contended for the respondent that the lands to which those documents refer were waste lands granted by Government after the year 1878 when an arrangement was made between the Collector and the mirasidars by virtue of which they were to be allowed swatantrams on such lands in consideration of their waiving their claim in respect of lands already granted by Government and lands taken up by the mirasidars themselves and abandoned. This may or may not be so, but we are at present only concerned with the question how these documents have been dealt with by the District Judge and there is no doubt that he has fallen into an error of fact. Then he thinks that the omission in the documents (Exhibits III to V (b) and VII to VIII (b) of any reference to thunduvaram is strong evidence in the defendant's favour. Most of them are, however, sale-deeds and it is not usual or necessary in such deeds to insert a recital that a purchaser should thereafter pay the thirvai or thunduvaram payable on the lands sold. It is the duty of the purchaser to do so, whether it is mentioned in the sale deed or not. The District Judge has declined to give any weight to old documents on the ground that it is admitted that mirasidars had many more privileges in the old days, (vide paragraph 5). This method of dealing with a question of custom is not correct. The evidence covering the whole period must be examined. It may be that the earlier Evidence is not sufficient to establish the custom: it may be that it is sufficient but that later evidence establishes a discontinuance—all these aspects must be considered which admittedly has not been done in this case. The agreement (Exhibit B) again is brushed aside by the District Judge as a document executed without consideration. If, of course, we assume that the mirasidar has no right to thunduvaram, Exhibit B was executed without consideration. But that is the very point in issue. Anyhow, Exhibit B is a clear acknowledgment by the tenant of the mirasidar's right to thunduvaram and must be given whatever consideration it is worthy of in arriving at a conclusion on the question of the mirasidar's right by custom to claim thunduvaram. The Diglott Register (Exhibit VII) read with Mr. Puckle's report and the subsequent conduct of the mirasidar in not claiming thunduvaram for sixteen years before 1905 may afford evidence that the mirasidar had no right by custom to claim thunduvaram on waste lands which he had not been cultivating and which had been granted as waste by Government to outside payakari tenants and it can even afford evidence that he abandoned his customary right so far as those lands are concerned. But as regards those lands in respect of which the right to thunduvaram is recognized in the Diglott Register itself, it is for the defendant to prove that the mirasidur has abandoned such customary rights and mere Don-receipt of the dues will afford very weak evidence of such at adornment. There are other matters in which the judgment is unsatisfactory, notably the statement in paragraph 4, line 35, that the defence witnesses deny payment of thunduvaram. This is not correct. They admit payment but seek to explain it away.
We cannot accept findings based on incorrect tests as to custom and mistakes of fact as to the effect of documents. We therefore send back the records to the District Judge for fresh findings on issues 1 and 2 with reference to the above observations and for findings on the third and fourth issues. The time for submission of findings will be four weeks from the receipt of records and ten days for objections.
The issues and the findings thereon are given below:
In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted the following
Findings:— The High Court has called for findings on issues 1, 2, 3 and 4,
2. This was a suit to recover arrears of thunduvaram or mirasi perquisites alleged to be due to the plaintiff from the defendant, ryot of Sittamur village.
3. Sittamur is a Government village in Madurantakam taluk. It is undoubtedly a mirasi village and it is not disputed that the plaintiff is the sole mirasidar.
4. The plaintiff bases his right (1) on custom, and (2) on Exhibit B, an agreement alleged to have been executed by the defendant in his favour in 1900. In his written statement the defendant denied the plaintiff's right. As laid down in Sakkaji Rau v. Latchmana Gaundan and the remand order of the High Court in the present case, the main question for consideration is whether by custom prevailing in the village the plaintiff is entitled to thunduvaram. The defendant's holding consists of A and B Schedule lands attached to the plaint, the former being wet lands and the latter dry. As regards the wet lands, in the Settlement Register (Exhibit J) no swatantram fee is entered, but in respect of the first seven fields, viz., Nos. 5, 6, 20, 22, 24, 46, 48 and 129 in B Schedule it is entered and against No. 114-B the remark is, no swatantram is due until resigned.
12. I therefore hold that the plaintiff is not entitled by custom to collect thunduvaram and this applies even, to the lands in the B Schedule some of which are liable to swatantram fees according to the Settlement Register, and 1 find accordingly on issue 2.
13. Issue 1— Whether the plaint agreement bears no consideration Exhibit B is the plaint agreement. The defendant brought a suit in 1905 to declare that it was not genuine. Both the Courts of first instance and the Appellate Court found it to be genuine. The consideration for it is said to be the pre-existing liability of the defendant to pay thunduvaram. In the view I have taken, I hold that there was no consideration for it, and find accordingly.
14. Issue 3 — Whether the plaintiff's right to the dues became barred by limitation to any and to what extent. The contention raised on behalf of the plaintiff is that the plaint claim is not one for rent but for a customary due and that the article of the Limitation Act which applies to it is article 120. On behalf of the defendant it is urged that thunduvaram is in the nature of rent as the mirasidar is a middleman between the tenant and the Government. The plaintiff relies on the observations in the remand judgment in the present case. Following Venkatavaraga v. District Board of Tanjore and Rathna Mudaliar v. Tiruvenkata Chariar(2) I hold that it is not rent but a customary due. I find that the article applicable is 120 of the Limitation Act, and therefore the suit is not barred by limitation.
15. Issue 4—What sum, if any, is due to the plaintiff? If it is held that the plaintiff is entitled to thundu, I hold that, according to Exhibits B and D, he is entitled to it at 15 marakals per cawni of wet for the first crop and 7½ marakals for the second crop, and 3½ annas per cawni of dry land and that he is not bound to collect only at the rate of 2 annas in the rupee as laid down in the Settlement Register. I find accordingly on issue 4.
This Second Appeal again came on for hearing before Sadasiva Ayyar and Phillips, JJ., who made the following Order of Reference to a Full Bench:—
Sadasiva Ayyar, J.:— The plaintiff is the appellant. This litigation commenced in December 1909 (nearly eight years ago) but I have felt it advisable that the whole matter of this second appeal should be referred to a Full Bench as some questions of law of more than ordinary importance are involved in its decision. Without expressing a final opinion on any of the questions involved or as to what should be the final result of the second appeal, I shall set out the material questions of fact and law making provisional comments here and there.
The suit was brought for recovery of Rs. 168-11-3 being the amount of thunduvaram perquisites due to the plaintiff as ekabaga mirasidar of Sittamur village, (in the Madurantakam taluk, Chingleput district) from the defendant who is a ryot in the village, the thunduvaram being claimed at 15 marakals per cawni of wet land for the first crop, 7½ marakals per cawni for the second crop and 3½ annas per cawni of dry land. The thunduvaram was claimed by the plaintiff by virtue of his mirasi right over the village and also by reason of an agreement, that is, a registered muchilika dated 26th January 1905 (Exhibit B), executed by the defendant. The District Munsif held (a) that the mirasidar's right to collect the plaint parquisites ‘fell into disuse’ about 1870, that ‘it was too late in the day for him now to seek its enforcement as a subsisting right on the basis of the general custom in the village;’ (b) that the defendant executed the muchilika (Exhibit B of 1905) possibly ‘in order to help the plaintiff in his endeavours to resuscitate the plaintiff's primitive right which had fallen into disruption’ and that it was also possible ‘that the defendant executed a document under a misapprehension as to the exact right of plaintiff to enforce the fee at present’ and the District Munsif finally thought that ‘on the whole there was no legal consideration’ for the plaint agreement. He therefore dismissed the plaintiff's suit.
On appall, the learned District Judge (Mr. Booty) held that as in the Settlement Roister (Exhibit J of 1878) it was recorded that the lands for which pattas had been given by Government to payakaris or on darkhast to mirasidars were exempted from swatantram fees and as the plaintiff had failed to prove that the plaint land fell under the category of lands other than those exempted from swatantram fees according to that Settlement Register and as the defendant had probably refused prior to 1878 to pay thunduvaram to the mirasidar on the strength of the statement in the Settlement Register, ‘the mirasidar's right was dead by limitation in 1890.’ He further held that the muchilika (Exhibit B of 1905) had absolutely no consideration to support it. He therefore dismissed the appeal.
When this second appeal first came on for hearing on the 17th December 1914 before a Divisional Bench of this Court, it was adjourned sine die for the decision of the Full Bench to which the general question of mirasidars' rights were referred in Seshachala Chetty v. Chinnasami. The opinions of the Full Bench in that case were pronounced on the 17th February 1916 and they are reported in Seshaohala Chetty v. Chinnasami (see from page 447). The present second appeal then came on for hearing before myself and Mr. Justice Napier in September 1916. We found ourselves unable to accept the finding of the District Judge ‘that the plaintiff's claim to obtain thunduvaram’ (a part of the mirasidar's swatantram) ‘became barred in 1890.’ Then as regards the right of the mirasidar to collect thunduvaram, I shall here quote from my above order of the 20th September 1916 concurred in by Mr. Justice Napier:
“Mr. Justice Ayling [in Seshachala Chetty v. Chinnasami says: ‘There are undoubtedly certain incidents which have been claimed as attaching to it’ (the mirasi tenure) ‘from ancient times, and have to some extent been recognized,’ one of such incidents being the right to certain fees (thunduvaram) on lands granted for cultivation to non-mirasi cultivators (payakaris) by the Government’… ‘In the result, following the decision in Sakkaji Rau v. Latchmana Gaundan which was recognized as good law by the Judges who decided the above Full Bench case, we hold that where (as in this case) the tenant denies the right of the mirasidar to thunduvaram, the burden of proof is on the mirasidar to prove the existence in himself of the right by establishing a custom to pay such dues.” (See pages 377 and 378 supra,)
After thus indicating our opinion that the custom of paying thunduvaram when set up by the mirasidar is one to be proved by the mirasidar by adducing proofs of instances of levy of such fees in his own estate and similar estates in the neighbourhood, we sent back the records to the District Court for fresh findings on issues Nos. 1 and 2, pointing out some of the errors which, in our opinion, occurred in the judgment of the District Judge. The issues Nos. 1 and 2 are as follows:—
(1) Whether the plaint agreement (Exhibit B) bears no consideration?
(2) Whether the plaintiff is entitled to the dues claimed even apart from the agreement?
On remand, the case was heard in the District Court by another District Judge (Mr. Venugopala Chetti) and he recorded findings against the plaintiff, his material conclusions being as follows:—
(a) In the Settlement Register (Exhibit J of 1878) swatantram fee due to the mirasidar is entered only in respect of some fields, namely, Nos. 5, 6, 20, 22, 24, 46, 48 and 129 in the plaint B schedule (which relates to dry lands in defendant's patta). Against 114-B in that same schedule, the remark in the Settlement Register is that do swatantram is due until the land was relinquished, that is, until it was given up by the then pattadar and taken up by another. Against the wet lands in the A schedule, no swatantram fee is entered in the appropriate column as due to the mirasidar.
“The Settlement Register must be regarded as a record-of-rights showing bow far the Government were prepared to recognize the claims of the mirasidars” “The ryots knowing as they did that there was a conflict between the mirasidar and the Government, would have naturally refrained from paying all the dues claimed by the mirasidar. The Settlement Register coupled with the oral evidence shows that there was interruption in the enjoyment of the mirasidar's right to thunduvaram. There is no evidence that the mirasidar has attempted to enforce his right in a Court of Law during all these years. Under these circumstances, the interruption raises a presumption against the existence of the custom.”
(b) Exhibits L and LI of the year 1826 relate to litigation between the plaintiff's grandfather and certain manyamdars (not sukhawasi tenants). Though the plaintiff's predecessor's right to collect thunduvaram and other mirasi dues was recognized therein, the dispute there was not between the mirasidar and the sukhawasi ryots and the question of the right to collect mirasi dues was not formally adjudicated upon by the Court. (Though the District Judge does not expressly say that these ancient documents of 1826 are therefore not of much value, he evidently means to suggest it.)
(c) The documents (Exhibits C-2 to C-15) beginning with 1864 are debt-bonds executed to the mirasidar by sukhawasi tenants. Some of them are for arrears of village adaya (income) and others expressly state that they are debt-bonds for arrears of thunduvaram, “It is possible that they refer only to lands leased by the mirasidar.” “The practice in the case of such lands cannot be invoked in proof of a customary right to mirasi dues from tenants introduced by the Government.” (The reasoning in this part of the learned District Judge's judgment is not quite clear, but he evidently means that as the Settlement Register (Exhibit, J.) does not mention the swatantram fees with reference to most of the plains ??? the defendant's predecessor in title must be deemed to have been a tenant introduced to these lands by the Government and a customary right to collect mirasi dues from such lands can only be proved by evidence of payment made specifically for such lands)
(d) As regards Exhibits F and G, Exhibit F was a statement prepared by the then karnam and the agent of the plaintiff's grandfather at the time of the settlement in 1878. Having regard to the fact that the Government did not act upon it as is clear from the Settlement Register (Exhibit, J.), not much importance can be attached to it. As regards Exhibit G, it is not signed by any one aid does not convey any information as to what lands are included in it and it therefore doubtful whether it included also lands not included in the mirasidar's patta (that is, lands for which Government issued pattas directly to the tenants).
(e) Exhibits E, H and K (two of them executed to the defendant himself) no doubt; refer to the right of the mirasidar to receive melvaram thundu from certain lands in the village. They are of the years 1885, 1887 and 1889, long after the Settlement Register, and though in the Settlement; Register (Exhibit, J.) swatantram is not entered against the lands mentioned in these mortgage deeds, the right of the mirasidar is acknowledged in these document. The District Judge, however, held that there was ‘considerable force in the defendant's argument that these documents are not sufficient to prove a general custom, especially as they relate only to a small extent of the lands.’
(f) As regards B and D series, Exhibit B being the plaint agreement executed by the defendant himself in 1905 and the other exhibits, agreements, taken from other tenants, though attested by the defendant himself, the District Judge thinks that no importance should be attached to these documents of 1905 as they were ‘recent’.
(g) Then the District Judge refers to some documents on defendants side on which it was argued that the omission to expressly mention thunduvaram in those documents was against the plaintiff' claim and to the fact that no thunduvaram has been collected for several years before suit. The question whether Exhibit B was supported by consideration or not is so closely interwoven with the question whether the mirasidar has a right by custom to recover thunduvaram that it might be said to stand or fall with it. As regards the rate of the thunduvaram, the District Judge decided that if the plaintiff was entitled to it at all, be was entitled at the rates claimed by him.
Mr. Govindaraghava Ayyar, the learned vakil for the appellant, strenuously contended (a) that be was entitled to argue on the whole evidence adduced as to custom just as if it were a question of fact, the finking on which might be attacked in regular appeal preferred to this Court, (b) that even if he was bund to accept particular facts and pieces of evidence which the lower Court held to be no established or false as conclusive, he was entitled to argue that on the facts held to be established and the pieces of evidence accepted as genuine by the District Judge, the District Judge ought to have found as a matter of law that the custom set up by the plaintiff was established, (c) that the learned District Judge was mistaken in his statement that Exhibit G is not signed by any one and (d) that he was not justified in making a distinction between the right to collect mirasi dues from tenants introduced by the Government and tenants introduced by the mirasidar and in rejecting the evidence in indicating the collection of thunduvaram on the mere ground that it was not spec fiscally shown that evidence related to the former class of lands.
I shall deal now with the first question, namely, that as this second appeal relates to a question of custom we are entitled to consider the whole evidence ourselves including the evidence which was not believed by the District Judge to be true or genuine. As I said in the very beginning I do not intend to deal finally with any of these questions as I have considered it advisable that the whole case should be decided by a larger Bench.
In Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*. ??? Ayyar, Officiating Chief Justice, and Boddam, J., refer to ??? v. Rami Reddi, Mirabivi v. Vellayanna(3) and Vishu v. Krishnin(4) (the last of which was decided by a Full Banach) as establishing that a finding as to the non-existence of the allegad local custom could be revised by the High Court on second appeal on the evidence. They then refer to the indulge of section 584 of the old Civil Procedure Code [corresponding to the present section 100(a)) which contain the words ‘the decision being contrary to (some specified) law ??? usage having the force of law.’ The learned Judges then continue—
“This language is so explicit as to rander superfluous the seeking for the reason of the provision though that is no, difficult to discover, viz., that a usage of the kind mentioned, being in its nature such must necessarily affect not only parties to the particular ??? of people, stands on a fonding similar to a matter of law other sources than usage. The very limited scope which is allowed to usages in ??? due to spacial historical causes (see Pollock and Maitland's History of English Law, 1st Edition, Vol, I, page 163), accounts for questions as to their existence being treated as falling under the ??? of question for too jury of course, it is otherwise in this country where from the days of Manu it has been laid down that ‘custom is transcendent law.’ It is clear, therefore, both up authority which is binding upon us as the opinion of a Full Bench and as the right, ??? of the provision in question of section 584 of the Civil Proactive Code, that though the section disallows a second appall with referential to findings of facts, yet the existence or non-existence of a usage having the force of law is unaffected by such disallowance. Consequently, it is the duty of this Court, when it has to pronounce upon that question, to examine the evidence bearing upon it, not only as to the sufficiency ??? to establish all the elements (antiquity, uniformity, etc.) required to constrict a valid usage having the force of law, but also the credibility of the evidence ??? in and the weight due to it.” “Accordingly we heard Mr. ??? upon, the ??? in support of the alleged usage.”
Thus according to this decision even the credibility of pieces of evidence adduced in support of local usage can be considered by the High Court on second appeal. In Muhammad Meeran Bibi v. Sheik Muhammad Rowther Spencer and Phillips, JJ., have held that the question whether the parties in a suit are governed by the Hindu or Muhammadan Law is a question of fact and does not relate to any usage having the force of law. The parties in that case ware Muhammadan Labbais of the Trichinopoly district. It seems to me fairly arguable with the greatest respect to the above decision, that the question whether the local usage among these Labhais had the force of a law which made their rights of succession governed by the rules of Hindu Law comes under section 100 of the Code of Civil Procedure, though the rules of both the Hindu and Muhammadan laws always have the force of law. (The learned Judges refer to a prior decision in Kunhambi v. Kalanthar decided by Tyabji and Spencer, JJ.) The most recent case which I have come across in this Court (decided in November 1916 is Pankajammal v. Secretary Of State For India by Ayling and Seshagiri Ayyar, JJ.) That related to the custom as to the order of succession of trustees of a particular kattalai in the Conjeeveram temple. The following observations occur:—
“Before we send the case down, it is desirable to advert to the extreme contention that was put forward in this Court that in all cases where evidence as to custom has been let in we are bound to weigh such evidence and decide for ourselves upon the materials. Mr. Ramachandra Ayyar who came in at a later stage of the case conceded that this contention is not supported by authority. The learned vakil argued that a question whether on the facts as found, the Courts below were justified in saying that a custom has not been proved is a point on which the High Court is entitled to draw its own inference. To the proposition thus advanced we see no objection. But we must point out that the value to be attached to the evidence let in, its reliability and in a measure, its relevancy are all matters for the Court below and that the High Court would not be justified in weighing the evidence, as if it were sitting to hear a first appeal.” “It is open to doubt whether the expression, a usage having the force law in section 100(a) of the Civil Procedure Code should not be confined to the usages of the country or of the community as suggested by Petheram, C.J, in Nivath Singh v. Bhikki Singh; customs like preemption, the law marchant and usages like those referred to in section 11 of Act VIII of 1865 seem to have been in the contemplation of the legislature. It seems doubtful whether a private right, like the one we are considering, falls within section 100, clause (a). However that may be, we feel no doubt that the High Court should not be called upon to examine the oral and documentary evidence relating to a private custom as if were hearing a first appeal.”
I must, however, say that the decision of this Court in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, following the Full Bench decision in Vishnu v. Krishnan, is not adverted to by the learned Judges who refer to Nivath Singh v. Bhikki Singh, which seems to have never been followed in this Court as law. I shall now refer to a very recent decision of the Privy Council in Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi. There, a custom of granting permanent leases of the property of a particular temple was set up. Tenor Lordships of the Privy Council say at page 721:
“It has, however, been pressed on behalf of the appellants that there are two findings: one by the Munsif and one by the Subordinate Judge, who agrees with him that the ancient custom relied upon has been proved, and that as this is an issue of facts, it must be accepted. No ??? two findings upon question of pure fact must be accepted by this Board, but questions of the existence of an ancient custom are generally questions of mixed law and fact; the Judge first finding what were the things actually done in alleged pursuance of custom, and then determining whether these facts so found satisfy the requirements of the law. This latter is a question, of law—not fact”.
I think that this case gives to the expression ‘local usage’ a mach wider meaning than Sir C. Petheram, C.J, was inclined to allow is the case of Nivath Singh v. Bhikki Singh. I shall now turn to the case of Kailas v. Padmakisor(5), decided in April 1917. Hera Mookerjee, J., reviews the authorities, dissents from Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .* and Vishnu v. Krishnan and sums up as follows:—
“But this does not entitle the High Court in second appeal to determine whether the evidence of the existence of the alleged usage is or is not credible, though the High Court is competent to determine, whether the usage, proved by evidence to exist, does or does not possess the force of law. The substance of the matter is that, while the question whether a given state of facts established a binding custom, or usage is a question of law, the question whether such a state of facts has been proved by the evidence is a question of fact.”
In this conflict of authorities, in view of the facts that Vishnu v. Krishnan was decided by a Full Bench of this” Court consisting of four very learned Judges (Turner, C.J, Innes, J., Kindersley, J., and Muttuswami Ayyar, J.) and was followed in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, and having in view the fact that this question of mirasi rights is reach in its final stage, I think that not only the mere questions of law, namely, whether the High Court in second appeal can go into the credibility of the evidence, whether it can consider the weight to be given to the evidence which is believed by the lower Appellate Court and whether the evidence taken as a whole is legally sufficient to establish the custom and the legality and binding force as law of the custom, etc.), but even the decision of the whole matter might be left to a larger Bench.
The Appellate Side Rules of the High Court, page 3, rule 2, says: “The following matters shall ordinarily but heard and decided by two Judges,” and then among the matters are mentioned “appeals from the decree of a Civil Court” which, I take it, includes a second appeals. So, a second appeal is treated as one of the ‘matters’ to be heard by a Bench of two Judges, Then it says:
“Provided both Judges agree that the determination involves a question of law, they may order that the matter, or the question of law, be referred to a Full Bench.”
I think that this empowers us to refer not only a question of law but the whole ‘matter’ of the Second Appeal to a Full Bench if a question of law alone is referred, then Rule 3 (page 4) would apply and the ‘matter’ (or the case) would ultimately come back to us.
I have thus dealt with the contentions (a) and (b) of Mr. Govindaraghava Ayyar. As regards contention (c) about the learned District Judged alleged mistake in his statement that Exhibit G is not signed by any one, Mr. Govindaraghava Ayyar has not printed the whole of Exhibit G and I think it is better to leave it to the Full Bench to decide whether they would allow him to have it printed in order to prove his contention.
As regards the last contention (d), I think there is much fore in his argument that the District Judge ought not to have rejected the evidence afforded by Exhibit C series on the ground that such evidence is valueless unless it was shown to specifically relate to lands granted by Government. I am also inclined to hold that the Government's non-recognition in the settlement register of the mirasidar's right to collect swatantrams from such lands cannot be said to detract in any appreciable manner from the weight of the other evidence relating to the mirasidar's right by custom to collect such dues having regard to the history of the mirasi tenure rights and to the fact that the Government has been trying to gradually restrict such rights. I might also state that as at present advised (assuming that this Court is entitled to weigh the evidence) I should be inclined to hold that the learned District Judge has not given sufficient weight to Exhibits E, H, K, B and the old legal records Exhibits L and LI (I would accept the rate of thunduvaram found by the District Judge if the plaintiff is held entitled to collect thunduvaram I am inclined further to ??? very much the soundness of the view of the District Judge that even as regards the plaint lands, fields Nos. 5, 6, 20, 22, 24, 46, 48 and 129 which are specially mentioned in the Settlement Register itself as liable to pay swatantram fee to the mirasidar, the custom set up should be held to be not proved because the custom is not (in the learned Judge's view) proved as regards the other lands also aid because there has been an interruption for several years. However, as I said, I would, having regard to the difficulty and importance of all the questions involved refer the whole matter to a Full Bench.
Phillips, J.:— This suit was remanded for a finding on several issues the most important of which is issue No. 2 ‘whether the plaintiff is entitled to the dues claimed even apart from the agreement.’ The dues claimed consist of what is called thunduvaram, and the plaintiff alleges that, as mirasidar, he is, according to custom, entitled to levy those dues from the defendant. The District Judge has tried the issue and has found that no custom has been proved to exist under which the plaintiff is entitled to make this claim. Tais finding is a Ending on custom and it is now sought to impeach it upon the evidence.
No doubt, a question of the existence of a custom is a question of mixed law and fact, and under section 100 of the Code of Civil Procedure a second appeal may lie to the High Court on the ground that the decision is contrary to law or to some usage having the force of law. The question of custom has been repeatedly considered and it has been held that the question of the mere existence of a custom is a question of fact—vide Hureehur Mookerjee v. Judoonath Ghose and Syud Ali v. Gopal Doss— and this has also been the view of the Judicial Committee in Muhammad Kamil v. Imtiaz Fatima and in Anant Singh v. Durga Singh In Ramratan Sukal v. Nandu it was held by the Judicial Committee that
“no Court of Second Appeal can entertain an appeal upon any question as to the soundness of findings of fact by the Court of First Appeal, and if there is evidence to be considered, the decision of the Court, however unsatisfactory it might be, if examined, must stand final.”
In Ramgopal v. Shamskhaton(6) this principle was approved, although it was held that in that particular case, which related to a custom, the facts found need not be questioned, but the soundness of the conclusions from them was in question and that was a matter of law. In Mohesh Chander Dhal v. Satrughan Dhal it was held that the question of the existence of a custom of lineal primogeniture as the rule of succession was a question of fact. In Kunhambi v. Kalanthar it was held by this Court that
“whether an alleged custom can be encored at all or whether it is uncertain, irregular or ??? and as such ought not to be recognizad is a question of law, but the question whether the custom exists and if it exists, it applies to a particular person or set of persons is a question of fact”
And this seems to me to correctly describe the principle laid down by the Judicial Committee in the above cases. In the present case, the question that has to be decided is whether the plaintiff is entitled to collect thunduvaram from the defendant, the right claimed being based upon an alleged custom. The existence of this custom in certain polices has been held to be true and the right has been held to rest in nertain mirasidars as such. The Full Bench decision in Seshachala Chetty v. Chinnasami has recognizad this customary right of levying thunduvaram, but the Court was of opinion that its existence in any particular case was a matter of proof. When, therefore, it is not a question as to whether a certain sat of circumstances forms a custom having the force of law, but where the question is whether a custom which his already been recognized by Courts as having the force of law exists in a particular locality or between particular parties, it seams to be a question of fact and if the matter were res integra I should feel inclined to hold that the present finding of the District Judge, to which exception has been taken, is a finding of fast with which this Court cannot interfere in Second Appeal. In Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, however, it was held that when the finding was as to an alleged local cuatom, the finding could be examined in second appeal and a conclusion arrived at. The decision was based upon the decisions in Hanumantamma v. Rami Reddi, Vishnu v. Krishnan and Mirabivi v. Vellayanna(7), in all of which cases a question of custom has been considered by this Court in Second Appeal, but in which the contention had not been put forward that such a question could not be raised is Second Appeal. In Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, this Court went, as it seems to me, considerably further than the dictum laid down by the Privy Council in Ramgopal v. Shamskhaton which was that the facts found need not be questioned but the question of the soundness of the conclusion arrived at was a matter of law, for it held that where the existence or nonexistence of a usage having the force of law was in question
“it is the duty of this Court… to examine the evidence bearing upon it, not only as to the sufficiency thereof to establish all the elements (antiquity, uniformity, etc.) required to constitute a valid usage having the force of law, but also the credibility of the evidence relied on and the weight due to it”
If this be accepted as ??? law, a Court in Second Appeal would be bound to examine the whole evidence relating be an alleged custom and to see what weight is to be attached to each particular portion of it and decide whether the evidence was reliable and witnesses worthy of credit. This appears to be somewhat inconsistent with the ??? understanding that in a finding of fact upon the evidence, the lover Appellate Court's decision is finial; and in Kailas v. Padmakison, Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .* has been expressly dissented from. In a recant case in Pankajammal v. Secretary Of State For India another bench of this Court remarked that the contention put forward that, in all cases where evidence as to custom had been let in, the Court was hound to weigh such evidence and decide upon the materials was not supported by authority but apparently the decision in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .* was overlooked. The learned Judge proceeded to say that the question whether, on the facts as found, the Courts below were justified in saying that the custom had not been proved was a point on which the High Court was entitled to draw its own inference, and that is in accordance with the abovementioned dictum of the Privy Council in Ramgopal v. Shamskhaton. In Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi, the Judicial Committee also remarked that
“questions of the existence of an ancient custom are generally questions of mixed law an fact, the Judge first finding what were the things actually done in alleged pursuance of custom, and then determining whether these facts so found satisfy the requirements of the law. This latter is a question of law—not fact.”
If we apply this principle to the present case it would appear that the finding that the custom of levying thunduvaram does not exist as between plaintiff and defendant is a finding of fact. In view, however, of the decision in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .* I agree that it is advisable that the question should be submitted to a Full Bench, and, as my learned brother wishes to refer not an abstract question, but the whole of this case, I concur.
On this Reference—
L.A Govindraghava Ayyar (with D.V Nilameghachariyar) for the appellant.—It is competent to the High Court in a second appeal to decide on the evidence whether a certain usage or custom alleged to govern the parties to the suit has been proved or not. Section 100, Civil Procedure Code, puts such usage or custom on the same footing as a question of law: compare section 110, Civil Procedure Code, last paragraph. Reliance was placed on Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, Vishnu v. Krishnan, Mirabivi v. Vellayanna, Hanumantanma v. Rami Reddi, Vayidinada v. Appu, Bai Shirinbai v. Kharshedji, Desai Ranchhoddas v. Rawal Nathubhai(8), Hureehur Mookerjee v. Judoonath Ghose(9), Wuzeerooddeen v. Sheobund Lall(10) and Syud Ali v. Gopal Doss(11). Reference was made to Ramgopal v. Shamskhaton(12) and sections 4 and 11 of Rant Recovery Act. He referred to and distinguished Kunhambi v. Kalanthar(13), Mohesh Chander Dhal v. Satrughan Dhal, Muhammad Kamil v. Imtiaz Fatima, Anant Stngh v. Durga Singh, Pankajammal v. Secretary Of State For India and Muhammad Meeran Bibi v. Sheik Muhammad Rowther. Desuetude or discontinuance of a usage or its non-exercise does not put an end to it Scales v. Key and Halsbury's Laws of England, volume 10, pages 235 and 272. Then evidence to show admission and recognition of liability to pay thunduvaram was referred to. Evidence to show that the custom was not discontinued was then referred to. The recent decision of the Full Bench in Seshachala Chetty v. Chinnasami has recognizad this as a well-known incident of the mirasi tenure.
T.R Ramachandra Ayyar for respondent.—Existence of a usage having the force of law, is a question of fact. He submitted that Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, was wrong. In Hanumantamm v. Rami Reddi Vishnu v. Krishnan and Mirabivi v. Vellayana this point was not considered. He relied on Kailas v. Padmakisor, Subraya Poi v. Appu Bhandary, Muhammad Meeran Bivi v. Sheik Muhammad Rowther, Kunhambi v. Kalanthar(14) and Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi(15) Then be dealt with facts to show non existence of the custom, lot which he referred inter alia to Sakkaji Rau v. Latchmana Gaundan(16) and Chinnan v. Kondam Ncidu(17).
The Court delivered the following Opinions:—
Wallis, C.J:— As regards the question of law referred to us I am of opinion that the decision in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .* must be overruled. In the case to which Sik Charles Turner was a party the Court no doubt examined the evidence in detail to see if it was sufficient to support the custom, but in no case did they interfere with the findings except in Mirabivi v. Vellayanna and there after referring to the findings they observed that the question before them was ‘whether there is evidence on which such custom could reasonably have been found to exist.’ They came to the conclusion that the evidence was not reasonably sufficient to support the custom. No question of the limits of the Court's right of interference in Second Appeal was raised or decided in these cises. As regards Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, I am unable with great respect to agree with the observations of Subrahmanya Ayyar, J., as to the effect of the words ‘usage having the force of law’ in that section. This section has a ling history going back to the days of Sudder Court. Act XVI of 1853 gave a special appeal to the Sudder Courts from any decision passed on a regular appeal in any of the Subordinate Civil Courts
“first on the ground that the decision hath failed to determine all material points in difference in the cause, or hath determined the same or any of them contrary to law or usage having the force of law.”
Under that section, as under this, where one of the “material points” in the case was the existence of a custom, that, as the Privy Council has recently laid down, is a mixed question of fact and law; and the Sudder Court was only entitled to interfere if the Subordinate Court had determined the point ‘contrary to law or usage having the force of law,’ and not, also, as in ordinary appeals, on the ground that the Subordinate Court had deter-mined the point contrary to the weight of the evidence. The words ‘usage having the force of law’ in the section appear to me to be little more than words of amplification, and in any view not to give the Court any larger powers of interference with findings as to custom is so far as they are findings of fact than with any other findings of fact. This section was reproduced in the successive Codes of Civil Procedure with alterations that in no way affect its scope so far as the present question is concerned. The more recent decisions of Ayling and Seshagiri Ayyar, JJ. in Pankajammal v. Secretary Of State For India, and of Mookerjee and Beachcroft, JJ., in Kailas v. Padmakisor, where all the cases are exhaustively reviewed, take the same view.
Even so, I am of opinion that the finding of the District Judge that the custom is inapplicable to this estate cannot be accepted. He does not find that there has been to law a discontinuance of the custom, but uses the fact that swatantrams are not proved to have been paid for a long time as evidence against the existence of the liability. He gives no effect to the record in the Settlement Register of 1878 that the land's in B schedule were liable to pay swatantrams. This is a strong instance of the assertion of the right on the estate and entitled to great weight, while on the other hand the refusal of there Settlement Officers to register the swatantrams as payable in support of the lands in A schedule is not conclusive as they and no authority to determine the question. As regards Exhibits E.H.K the District Judge finds that they indicate a right to thunduvaram even in suit lands against which no swatantrams is entered in the register, but observes that they relate only to a small extent of land. Lastly we come to the documents Exhibit B in which the defendant agrees to pay swatantrams and Exhibit D series to the same effect which were taken from the other tenants. These are strong admissions against Interest and the District Judge was not justified in dismissing them as of no importance because they are recent. The liability to pay swatantrams is a well known incident of mirasi tenure in Chingleput; but, as it is not universally applicable, it has been held by the Full Bench in Sakkaji Rau v. Latchmana Gaundan that it is for the mirasidar to show that he is entitled to it “by the custom of the estate or the neighbourhood.” The above findings of fact by the District Judge are, in my opinion, sufficient to raise a presumption in the plaintiff's favour which is not rebutted by any other findings, and I would reverse the decrees and decree the suit with costs throughout.
Sadasiva Ayyar, J.:— I confess that I have felt great hesitation in arriving at a conclusion on the question whether in second appeal, the High Court has got a right to itself examine the evidence with reference to which the finding of the District Judge on the issue of custom was given. On the one side, there are the decisions of this Court in Hanumantamma v. Rami Reddi, Vishnu v. Krishmn, and Mirabivi v. Vellayanna where several learned Judges of this Court (including Sir Charles Turner, C.J, and Muthuswami Ayyar, J.) have assumed as indisputable that this Court has got such a right. I agree with Sir S. Subrahmanya Ayyar (Officiating Chief Justice) in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .* that
“it is impossible to believe that the learned Judges who decided” those cases “overlooked so obvious an objection.”
In Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, Sir S. Subramanya Ayyar (Officiating Chief Justice) and Boddam, J. Directly decided that whatever may be the English law, where a question of ‘usage having the force of law,’ is concerned, the High Court in second appeal ought to have and has the power to consider even the oral evidence as regards facts, incidents and instances on which the parties relied in the lower Courts to prove or to disprove the alleged usage. The tendency of recent decisions in this Court has been to follow the Calcutta decision. In Kailas v. Padmakisor that very learned Judge, Sir Ashutosh Mukerjee who was one of the Bench which decided the case, very exhaustively deals with the question and I shall extract from that judgment the material conclusions arrived at therein:—
(1) “The question of the existence of an alleged custom is a question of fact.”
(2) The finding of the lower Appellate Court “is liable to attack on the ground that irrelevant evidence has been received” of “chat relevant evidence has been excluded.”
(3) “also on the ground that there is no evidence of the alleged custom” or “that the finding is based on legally insufficient evidence” or “that the facts found do not constitute evidence of the alleged custom.”
(4) also, “on the ground that legal principles or tests have been erroneously applied or that the Court has not correctly appreciated the essential attributes of a custom,” or “has over-looked the distinction between a custom and a usage.”
(5) “consequently, the question whether the facts found prove the existence of the essential attributes of a custom is a question of law which may be discussed in second appeal.”
I am naturally very loth to differ from the opinion of Sir S. Subrahmanya Ayyar, J., especially as be gives very cogent reasons for his conclusion in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, but I think that there are certain dicta of their Lordships of the Privy Council which are more binding upon me. In Ramgopal v. Shamskhaton, their Lordships quote their own decision in Ramratan Sukil v. Nandu and lay down as regards the construction of sections 584 end 585 of old Civil Procedure Coda (re-enacted practically in the same terms in the new Code) that
“it has now been conclusively settled that the third Court cannot entertain an appeal upon any question as to the soundness of findings of fact by the second Court; and if there is evidence to be considered, the decision of the second Court, however unsatisfactory it might be if examined, must stand final.”
Now, the findings as be instances of usage, as to the genuineness of documents put forward as regards usage and the credibility of witnesses are clearly findings of fact. But as pointed out by their Lordships of the Privy Council thanes ??? in Palanicppa Chetty v. Sreemath Devasikamony Pandara Sannadhi, the Judge's findings as to ‘what were the feigns actually done in alleged pursuance of custom’ may be findings of fact, but whether the facts so found satisfy the requirement of the law is a question of law. The decision in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .* is not expressly referred to in Pankajammal v. Secretary Of State For India. Mr. T.R Ramachandra Ayyar who appeared in the latter case assures us that Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .* was in the minds of the learned Judges who decided the latter case and that it was quoted to them. Of course, I accept his statement. The position laid down in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .*, namely, that the evidence can be gone into in detail in the High Court in second appeal is characterised in the judgment in Pankajammal v. Secretary Of State For India, as an ‘extreme contention.’ The learned Judges proceed to say that
“the value to be attached to the evidence let in, its reliability and in a measure, its relevenocy are all matters for the Court below.”
They again indicate their inclination to the view that the usage having the force of law mentioned in section 100(a) of the Civil Procedure Code should be confined to the usages referred to by Petheram, C.J, in Nivath Singh v. Bikki Singh. While the reliability of evidence let in is for the lower Appellate Court, I think (with the greatest respect) that the value to be attached to the evidence (provided it is not mere ‘opinion’ evidence) supposing it is accepted as true and the relevancy of evidence are questions to be considered by the High Court also. If notwithstanding undereducated instances ranging over a long period and recognised judicially in several cases, the lower Appellate Court finds against the existence of a proper custom on the ground that in its opinion the instances are insufficient in number, the High Court is clearly entitled to hold that on the facts found by the lower Appellate Court, the custom is legally established. As regards the observations of Petheram, C.J, in Nivath Singh v. Bhikki Singh they have been expressly overruled by their Lordships of the Privy Council in Ramgopal v. Shamskhaton. However, as I said already, I feel (though after some hesitation) that I should follow the principles laid down in Kailas v. Padmakisor in preference to the conclusions in Kakarla Abbayya…(Plaintiff) v. Raja Venkata Papayya Rao…(Defendant) .* as the former decision seems to be more in consonance with the dicta of the Privy Council in Ramgopal v. Shamskhatoni and in Muhammad Kamil v. Imtiaz Fatima and in Anant Singh v. Durga Singh.
In the present case, accepting the facts as found, I agree with my Lord that they do satisfy the requirements of the law as to the existence and validity of the custom. I am inclined also to hold that we are entitled, under section 103 of the Civil Procedure Coda to go into the genuineness of the documents in Exhibit C series (except C-1), the District Judge, in my opinion having not given a finding about the genuineness of the documents (except C-1) and I would find that they are genuine. They strongly corroborate the other evidence as to custom.
Further, the document Exhibit B executed by the defendant is a clear admission of the existence of the custom in 1905 and of the defendants' liability to pay thunduvaram according to that custom. Their Lordships of the Privy Council in Chandra Kunwar v. Chaudhri Narpat Singh, quoting from English cases state:
“What a party himself admits to be true may be reasonably presumed to be so”. “The express admissions of a party to the suit are evidence, and strong evidence against him.”
No explanation was given by the defendant from the box as to his admission in Exhibit B and
“unless and until he explains such admission the fact admitted must be taken to be established”—(page 195).
The lower Courts merely argue in a circle when they find that Exhibit B has no consideration because the liability by custom to pay thunduwaram is not established. Further the lower Courts have ignored the consideration that as regards the rights to thunduvaram, the mirasidar has a far less heavy burden to discharge than when he lays claim to nattam poramboke lands, etc. [See judgments in the Full Bench case in Seshachala Chetty v. Chinnasami.]
I therefore agree in reversing the lower Court's decrees and allowing the appeal as proposed by my Lord.
Kumaraswami Sastriyar, J.:— I agree with the conclusions arrived at by my learned brother Sadasiva Ayyar, J., and have nothing useful to add.
N.R
Comments