Cherukur Krishniah vs Sowcar Lodd Govinda Doss Krishna Doss

Varadachariar, J.—These appeals and the connected second appeal raise more or less the same questions and maybe conveniently dealt

with together. The suits out of which they arise were Instituted by the same plaintiff against persons in possession of different portions of the former

Karvetnagar zamindari and the plaintiff claims to recover from them a certain sum of money representing arrears of what is described in the plaint

as kavimera on the allegation that more than 200 years ago, there was a grant by the then Rajah of Karvetnagar to the plaintiff''s predecessor-in-

title of certain inams in the Karvetnagar zamindari and also of a hereditary right to receive a small fraction of the zamindar''s melvaram in each

village in the zamindari. The arrears were claimed in the various suits for a varying number of years, according as the plaintiff had not received

satisfaction in respect of his claims from the various persons in possession for prior periods.

The defences to the plaintiff''s claim may be briefly grouped under four heads. It was contended that the right claimed was not one which can be

enforced in a Court of law. The alleged payments, if true, must, it was said, have been only in the nature of voluntary payments, if not also in the

nature of illegal collections from the ryots. It was next said that the plaintiff had not made out his right as heir of the alleged original grantee. Thirdly,

a plea of limitation was raised and lastly, questions were raised as to the form of the decree that the plaintiff was entitled to. It is some consolation

to find that all the Courts which had to deal with this litigation have uniformly found in favour of the plaintiff so far as the merits of his claim go. After

examining the records of the case, we cannot help expressing our regret that the defendants should have thought fit to re-agitate the merits of a

claim which has been put forward successfully in various litigations, at least from 1894.

The first two points above indicated may be briefly disposed of. We are unable to accept the suggestion that the payments, if any, made to the

plaintiff or to his predecessor-in-title, were only in the nature of voluntary payments or illegal exactions. As shown by the learned Subordinate

Judge who has dealt with the case at considerable length, it is clear that as early as 1810, plaintiff''s predecessor-in-title claimed that there had

been a grant by a previous Rajah to his predecessor-in-title somewhere about 1690 and that the same had been lost during Hyder''s invasion. It is

obvious that the then officers to whom that representation was made were satisfied with that explanation for the non-production of the grant. The

accounts of the zamindari which have been produced in respect of a period going back to 1832 clearly show that the practice has been for the

village officers, in preparing the village accounts, to make a deduction in respect of this kavimera before ascertaining the amounts which they were

to remit to the zamindar as his net income from the village. In several mortgage documents executed by previous zamindars, reference has been

made not only to meras generally but specifically to this kavimera and it has been directed that the usufructuary mortgagees should appropriate in

satisfaction of their claim for interest or of principal only the balance of the village income that may remain after the various meras including the

kavimera had been paid. There are also letters of which two may be treated as typical; the first (Ex. G) was written when a widow

Venkatarajamma succeeded the previous bolder and the other (Ex. G-10) was sent by the zamindar when the plaintiff''s guardian made a claim on

the plaintiff''s behalf; in both the letters reference was made to the obtaining of a succession certificate or to the appointment of the plaintiff''s

guardian by a Court of law, and directions were given that on the strength of the title thus established, the mera amounts would be disbursed to

them in future as before. It is also in evidence that from 1894 plaintiff''s title has been asserted and established in various litigations. In the face of

this evidence, it is impossible to come to any other conclusion than that it was in recognition of a hereditary right under a pre-existing but

subsequently lost grant that this mera was being paid to the plaintiff''s predecessor-in-title and afterwards to the plaintiff.

Before us, Mr. V.V. Srinivasa Ayyangar, on behalf of the Tirupathi Devasthanam, raised a point that if the case was to be treated as one of

payment in return for service to be rendered, plaintiff was not merely not rendering service but was incompetent to render such service. We do not

think it is necessary to deal with that question, because there is nothing to indicate that this is a service grant. Some reference was made to the

possibility of successive grants to each individual and it was argued that as no grant had been made to the plaintiff, he was not entitled to claim

payment merely on the ground that his predecessors had been paid the mera; but the evidence to which we have already referred, particularly Exs.

G and G-10 establish that it was in recognition of a hereditary right that the payments were being made. The argument about resumption and re-

grant seems to rest merely upon a misconception arising from the use of the word ''japti'' in some of the documents. It is obvious from the context

that reference was made to ''japti� merely because on account of some defect in the claimant''s title, as for instance the non-production of

succession certificate or the absence of any appointment of a guardian, there was a temporary break in the payments. The use of the term ''jari''

which we find was ordered as soon as the defect was cured, is itself a clear indication that it was merely a recognition of a right for the continuance

of the payments and not a fresh grant as an act of grace.

It was next said that the payment has been so indefinite as not to suffice to be the basis for a claim on the ground of a lost grant. The answer to

this is that the indefiniteness is not in the right to which the plaintiff is entitled but merely arises from the fact that the practice has been to calculate

the mera at different rates for different villages, there being no lack of uniformity so far as the rate for each village is concerned. Differences in the

rates adopted in different villages might have originated from various causes, but as the same rate had been shown to have been adopted in respect

of any particular village throughout the time in respect of which any information is available, we do not think there is any force in the argument

based on indefiniteness.

As regards the argument against the proof of the plaintiff''s title, the learned Counsel laid stress upon the inconsistent statements made by the

plaintiff in the witness box as to how he derived his title. At one stage he referred to a will executed by his grandfather''s mother; at another stage

he described himself only as heir of his grandfather and in the third stage he stated that his maternal uncle had survived his grandfather; but the

context in which these statements appear makes it clear that the plaintiff had no personal knowledge in respect of events which happened after

during his infancy or before his birth. He stated positively that he had no personal knowledge in respect of the above matters; that being so, the

mere fact that speaking from hearsay he gave inconsistent answers to certain questions put to him in cross-examination does not we think justify a

contention based upon their alleged inconsistencies. As we have already pointed out, the plaintiff''s right is established by the documentary

evidence in the case and so far as his personal claim is concerned, there is the undisputed fact that from 1894 he alone has been putting forward

the claims successfully and no other claimant has either come forward or has even been alleged to have a right. We accordingly think that the

decision of the Courts below on the first two points is correct.

The third question has been argued before us more fully than the first and the second. In some of the plaints, the claim has been made for a

''money'' decree though incidentally reference has also been made to the plaintiff''s claim being a charge on the villages. In a few of the plaints, relief

has been prayed for by way of enforcement of a charge as well. The question of limitation is material in two of the suits, because in these two suits

the claim Includes arrears alleged to be due in respect of a period anterior to six years before suit. In A.S. No. 160 of 1931, plaintiff has appealed

against so much of the lower Court''s decree as disallowed his claim for the period anterior to six years before suit, that is for Fasli 1331. The

learned Judge who decided that case purported to follow the decision in Ghulam Ghouse v. Jannia AIR 1920 Mad 447 and held that the plaintiff''s

claim cannot be said to relate to a periodically recurring right within the meaning of Article 131; and as he was also of opinion that the plaintiff was

not entitled to a charge, he held that the case was not governed by Article 132. He therefore allowed the claim only for six years prior to suit, i.e.

to the extent permitted by Article 120. On the other hand, the District Munsif, who decided the case out of which S.A. No. 544 of 1933 arises,

was of opinion that the plaintiff was entitled to a decree for enforcement of a charge and he accordingly allowed the claim for the whole period, i.e.

within 12 years before suit.

In the arguments before us, various suggestions have been made as to the proper Article of the Limitation Act applicable to the plaintiff''s claim.

On behalf of the defendants, it has been contended that the claim is really one ''for money had and received'' and that the plaintiff could only claim

the collections made by the defendants within three years of suit. At best, it was said, Article 120 might apply as the residuary Article and that

would justify the award of six years'' claim. Reliance was in this connexion placed on the decision in Ghulam Ghouse v. Jannia AIR 1920 Mad

On behalf of the plaintiff, it was contended that the plaintiff was entitled to a charge, that his claim was in any event governed by Article 131

and that the suit was not analogous to a claim for ''money had and received'' but it was against a person who stood in the position of a grantor and

was therefore liable to pay.

We are unable to accept the defendant''s contention as to the nature of their liability. It is true that the liability is not one descending upon the

defendants as heirs-at-law of the grantor nor is it a personal liability in the sense that it will continue to inhere in them even after they had ceased to

be in possession of the villages out of which the meras are claimed. This is all that their Lordships of the Privy Council meant when they said that a

liability of this kind is not a personal liability but one virtue tenures: Maharana Fattehsangji Jaswatsingji v. Desai Kallianraijl Hekmutraiji, (1873) 1

I.A. 34. But as long as any person is in possession of the village, out of whose income the mera is payable, he is subject to the liability and the

liability is not one arising out of his having wrongly made a collection of what he was not entitled to collect but one arising from the fact that out of

the collections which as a zamindar he is entitled to make, he is bound to make the disbursement and appropriate only the balance. In that sense

and to that extent it is a personal liability. It is not one resting on covenant but in the nature of a charge, because the payment is one which has to be

made out of the profits of immovable property: Rajarajeswara Dorai v. Sundara Pandiaswami Tevar AIR 1915 Mad 664 and Rajah of Ramnad v.

Sundara Pandiaswami Tevar AIR 1918 P.C. 156. See also the Explanation to Article 132, Lim. Act. We may add that from the mere fact of its

being a charge, it will not follow that it cannot fall under Article 131. As long as any person continues to be in possession of a village out of whose

melwaram the mera is payable, he is liable to pay it as a condition of his tenure as a zamindar, or other person entitled to possession of the

melwaram interest. It was decided by a Full Bench in Manavikrama Zamorin Raja Avergal of Calicut v. Achutha Menon AIR 1914 Mad 377 that

in respect of a claim of this kind, even the suit for payment of arrears due will be governed by Article 131: Senthattikalai Pandia Chinna Thambiar

and Another Vs. K. Rama Iyer, . It is true that on the question of the applicability of this Article to a suit for money, there has been a difference of

opinion in other Courts. Part, so far as this Court is concerned, the matter must be taken to be concluded by the decision of the Full Bench. It may

be, as pointed out in Ghulam Ghouse v. Jannia AIR 1920 Mad 447 the learned Judges who decided the Full Bench case assumed that the claim is

one in the nature of a periodically recurring right; and for the present we are willing to treat that question as open to argument. But if it is a

periodically recurring right, a claim for arrears in respect of such right (as much as a mere suit for declaration) is undoubtedly governed by Article

131, according to the opinion of the Full Bench.

The decision in Ghulam Ghouse v. Jannia AIR 1920 Mad 447 was strongly pressed on us and we were asked to hold that a claim like the

present is not one in the nature of a periodically recurring right. We do not think that that judgment is an authority for that position; the case is

clearly distinguishable because the suit was not one between the person entitled to the periodical payment and the person bound to make the

periodical payment but one between a person who claimed to be so entitled and another person who, he alleged, had wrongly received the

payment from the person liable to pay. So viewed, the suit was really in the nature of an action for ""money had and received"". An examination of

the records of that case also shows that the point argued there related not so much to the period of limitation applicable to the recovery of the

money but to the period of limitation governing the right to the office itself as between rival claimants. The plaintiff claimed to be entitled to be the

muttawalli of a mosque and the defendant likewise claimed to be entitled to the office of muttawalli; and on the evidence it appeared that the

defendant had been in possession of the office for more than six years prior to suit. What the Court decided was that as the defendant had been in

possession of the office for more than six years, the plaintiff''s right to the office itself had been extinguished and the mere fact that the Yeomiah

allowance might have been an annual payment, would not bring the case under Article 131. This line of reasoning is quite in accord with the

decision in Kidambi Raghavachariar v. Tirumalai Asari Nallur Ragbavachariar (1903) 26 Mad 113 where it was held that if the office is not a

hereditary one, six years'' possession by a rival office holder would suffice to extinguish the plaintiff''s right thereto and with the right to the office he

would also lose the right to receive all payments attached to the office.

That payments like the present will be governed by Article 131 is now placed beyond doubt by the decision of the Judicial Committee in AIR

1934 108 (Privy Council) . The facts of that case are very similar to the facts of the present with this difference that the grant relied on there was

made by the British Government no doubt in confirmation of a prior grant which had been made by the Maharaja of Satara whereas here the grant

was made by a former Rajah of Karvetnagar; the nature of the payment is very similar to the present. Their Lordships have put it as a matter

beyond doubt that a claim to a payment of that kind would fall under Article 131. Our attention was drawn to the decision in Mt. Jaggo Bai v.

Utsava Lal AIR 1929 P.C. 166 where dealing with a claim to a malikana, the Privy Council applied Article 120. That case is clearly

distinguishable, because the question did not arise there between the person entitled to the payment and the person bound to make the payment,

but between rival claimants. The nature of the payment in that case was not one which will satisfy the definition of ''immovable property'' and there

fore Arts. 141 and 144 were excluded; their Lordships accordingly held that a claim of that kind between two rival claimants would be governed

by Article 120.

As bearing upon the question of limitation, we must refer to one other argument advanced by Mr. Srinivasa Ayyangar on behalf of Tirupathi

Devasthanam, i.e. that; the proper remedy of the plaintiff was to proceed against the ryots and collect his percentage from them and that the

persons in possession of the melwaram interest were under no legal obligation to make the collections and pay the plaintiff. If this position were

correct, it would no doubt follow that any liability of the zamiudars or persons in their position would only be as for ''money had and received''. But

we do not think that that is the true nature of the right. The whole course of conduct of the parties and the information available from the accounts

negative that description of the plaintiff''s right; the matter is put beyond doubt by the positive direction given in Ex. G that the person entitled to the

mera should only receive it from the village officers of the zamindar and should not make any attempt to collect the money from the ryots. Indeed,

this is the only proper course, when it is remembered that the mera was a deduction from the melwaram interest of the zamindar and was not part

of the rent which the ryots had to pay or any liability cast by custom on the ryots. The lower Courts were therefore right in holding that the liability

is one cast upon the person in possession of the melwaram interest to make this disbursement before he can appropriate for his own use the rest of

the melwaram income. In that sense, it will also be a charge; but in the view that Article 131 applies to the money claim, it is unnecessary for the

purpose of the present case to decide whether the suit will not be governed by Article 132. We will only point out that Article 132 will apply only

so far as the plaintiff might seek to recover the money by sale of the particular property charged and will not govern his right to a decree against the

persons who had made the collection of the melwaram. Having regard to the usage established by the evidence, we think that in this case the

charge must be treated not as one available generally against all the villages of the zamindari or even against all the villages in the possession of any

particular defendant but as one on each village in respect of the portion of the mera due from that village.

It only remains to deal with the objections raised to the form of the decree. A money decree against any of the defendants in respect of arrears

that had fallen due for a period of 12 years or less, provided that the defendant has been in possession of the village for the period of the claim, will

be perfectly right. Similarly, a charge decree against the melwaram interest in any village in respect of the amount of mera due from that village will

be equally right; but in one or two instances, in the appeals before us, the decrees cannot be said to be limited in that form. We do not however

think it necessary to go so far as formally to amend the decree except to the extent to which any greater liability has been cast on the defendants by

these decrees having been so framed. As regards the rights of parties in the future, the declaration we have above given will be sufficient to avoid

any inconvenience.

We accordingly think it necessary to deal particularly with the decree only in S.A. No. 544 of 1933. Even in A.S. No. 40 of 1935, it has been

contended that a liability has been cast upon the defendant in respect of a Fasli prior to his getting into possession, but we think the amount

involved is so small that it is hardly worthwhile pursuing that question or modifying the decree. In S.A. No. 544 of 1933, the amount involved is

larger. It appears that in respect of some 15 villages in the Pallipat Taluk, the mahant became a purchaser of the equity of redemption prior to the

date from which the claim is made in this suit, but the property was nevertheless in the possession of a usufructuary mortgagee who was redeemed

many years later. It may be a question whether during the time that the usufructuary mortgagee was in possession, the plaintiff would not

nevertheless be entitled to his claim because the usufructuary mortgagee was entitled only to what remained after tha meras had been paid. But the

usufructuary mortgagee is not a party to this appeal.

It also appears that during the pendency of the redemption suit, instituted by the mahant against the usufructuary mortgagee, the mahant was in

de facto possession as receiver; but we are not prepared to hold that the mahant will be liable merely on the ground of his possession as receiver

and it will be necessary to consider how the accounts were taken in respect of his receivership and whether the amount which would legitimately

have been deducted in respect of the plaintiff''s mera was taken into account or not at the time of the passing of the receiver''s accounts. Though

the point was in a way raised before the District Munsif (who overruled it in the view he took as to the nature of the plaintiff''s charge), the matter

was not adjudicated on by the lower Appellate Court and the result is that we have very little information on which we can come 60 a definite

conclusion as to the amount which the mahant might be entitled to claim deduction of as representing the period of his possession as ""receiver. It

does not seem to us worthwhile to send the case back for further investigation on this point and the learned Counsel on both sides fairly agreed to

our suggestion that as the main point was to define the legal basis of the plaintiff''s right and of the defendant''s liability, it will be sufficient for us to

fix a rough and ready figure as the deduction which ought to be allowed in respect of the period prior to the mahant''s getting into possession in his

own right. We suggested'' a figure of agreed to it. The decree of the District Munsif will accordingly be modified by substituting Rs. 838-4-9 for

Rs. 1,338-4-9. Interest will also be correspondingly reduced. In the result, A.S. No. 160 of 1931 will be allowed and the plaintiff will be given a

decree even in respect of the amount claimed for Fashi 1331. Appeal No. 101 of 1934 also will be allowed in the sense that there will be a finding

on Issue No. 14 to the effect that the mera due to the plaintiff is a charge of the kind that we have explained above. We do not think it necessary to

make any separate order as to costs in A.S. No. 101 of 1934 or in A.B. No. 40 of 1935 or S.A. No.544 of 1933; but in A.S. No. 160 of 1931,

the appellant will be entitled to his costs and in A.S. No. 100 of 1934, the respondent will be entitled to his costs. Appeal No. 100 of 1934 is

dismissed. Appeal No. 40 of 1935 is also dismissed.