Mosafkanni Ravuthar and Others vs Doraisami alias Gauri Vallabha Thevar Avl., Zemindar of Sivaganga and Others

Ramesam, J.—The finding of the Subordinate Judge is accepted. The finding is to the effect that the wet lands are divided between the

several sharers and each sharer is in enjoyment of his specific share. As to the dry lands, half of them are enjoyed by the sharers as tenants-in-

common by being held through permanent lessees and the other half similarly through occupancy tenants. The sharers are not in physical

possession of the dry lands and practically there is little chance of their getting into physical possession. They have to collect the rent and divide it

according to their respective shares. It is also clear that at the time of the inam register, Ex. IV, that is in 1864, all the lands were undivided and

were being held jointly. The poruppu for the Chatram portion must have been paid jointly by all the sharers though it was separated from that due

on the Dharmasanam portion. The question that now arises is, what is the principle of law applicable to the liabilities of the shareholders?

We start with the fact that the original Agraharamdars were all Brahmins and there is none now among them and even in 1864 most of them,

perhaps all relating to the Chatram portion, were alienees. It is clear now that they are all alienees. The liability of the assignee of a lessee is

primarily by reason of the privity of estate. See Monica Kitheria Saldanha v. Subbraya Hebbera 17 MLJ 258. Each sharer is therefore liable at

least to the extent of his share. The further question is whether they are jointly liable and not merely severally liable for their respective shares. ""No

doubt, in 1864, the payments must have been made jointly. But at that time they were tenants-in-common and were in joint possession and have,

as will be shown lower down, been jointly liable for the poruppu. Oh this ground they must have paid the poruppu jointly, but since then the wet

lands have been divided into separate shares and there is no joint possession. The petitioners'' vakil, Mr. Sesha Aiyangar, contends that even as to

the dry lands they are not jointly and severally liable. He relies on certain observations in Venkatasubramaniyam v. Raja of Venkatagiri (1919) 11

LW 523, specially the observations of Krishnan, J. The point was not actually decided in that case. The contention based on the fact that some of

the defendants were assignees was not raised there in the first Court and in the High Court the decision proceeded on the assumption that all the

defendants were the heirs of the original lessees. The observations of Krishnan, J., in favour of the assignees were therefore obiter dicta, When we

examine the cases referred to, none, of them is quite conclusive though the inclination in these cases is in favour of the assignees. In the first English

case, Gamon v. Vernon 83 ER 532, the suit itself was for the proportionate share. In the other case, Stevenson v. Lombard (1802) 2 East. 575 ,

the defendant was evicted from a certain share by the paramount title of a prior lessee and it was held that the rent may be apportioned. Both these

two cases were discussed at length by Greer, J., in United Dairies v. Public Trustee (1923) 1KB 469. He is of opinion that the matter was not

really decided by the English authorities. He is inclined to agree with the opinion of Kenny, J., in Dooner v. Odium (1914) 2 Ir. R 411. It is also the

trend of opinion of the text-writers. See Foa on ''Landlord and Tenant'', p. 469. In Jagam Mohan Sarkar v. Brojendra Kumar Chakravarthi

(1925) ILR 53 C 197 (FB), B. B. Ghose, J., seems to take the same view. The decision in Kunhi Sou v. Mulloli Chathu 23 MLJ 695 deals with

apportionment in the matter of time and it is not clear that the Judges were discussing the case of tenants-in-common in joint possession. I adopt

the view of Greer, J., in United Dairies v. Public Trustee (1923) 1KB 469 and that of Kenny, J., that is, if the assignee of a share holds his share in

physical severalty he is separately liable for his share and if they are jointly in possession as tenants-in-common of the whole (even if such

possession is through sub-tenants) they will be jointly liable though it will be open to them to cut down their liability by division. The acceptance of

joint liability in 1864 is attributable to this principle and would not prevent the assignees tenants from cutting down their liability by a later division.

Mr. Kuttikrishna Menon for the respondents contends that as a specially well-known incident of the agraharam tenure in Southern India all are

jointly and severally liable even if there is division. He referred to several cases such as Zamin dar of Ramnad v. Ramamany Ammal ILR (1880) M

234, Sundaram v. Sankara ILR (1880) M 334) and Ellaiya v. Collector of Salem (1866) 3 MHCR 59 (62). In some of these cases it is not clear

that the tenants were assignees. In none of them the point arose directly and the point seems to have been assumed or conceded without any

argument. It cannot be said by reason of cases of this kind that a customary incident has been established in Southern India modifying the general

principle of law. I must therefore hold that each defendant is only separately liable in respect of the wet lands in his possession. The shares of the

defendants are already known. As to the dry lands they are jointly liable. The only question that has to be determined now is, what is the

proportion of the poruppu payable on the wet lands and on the dry lands?

The materials on record are not enough to determine this. The Subordinate judge will now find on the question, how is the poruppu to be

proportionately distributed between wet lands and dry lands? He must do this with reference to the assessment of the wet and dry lands and their

market value. When he determines this, he will then divide the assessment of the wet lands between all the sharers for the three faslis in suit. He will

notice in the written statement of the defendants that the shares of sharers Nos. 1 to 8, 10, 12, 13 and 15 are the same for all the three faslis and

the proportions differ for the three faslis only in respect of sharers Nos. 11, 14 and 1.6. He will then consider the several receipts filed in the case

by the defendants and allow the defendants to appropriate the payments under these receipts as they like for the dry or wet portion in each man''s

share and ascertain the balance due by each defendant for each fasli. A tabular statement for each of the three faslis for all the sharers would be

convenient.

He will then pass decree accordingly for the respective amounts against the several defendants. The suit will be remanded for disposal according

to law with reference to the above directions.

In the High Court each party will bear its own costs. In the Court below the plaintiff will get from each defendant proportionate costs with

reference to the decree he obtains against that defendant. But the plaintiff need not pay any costs to any defendant.

Reilly, J.

It is admitted that the village with which this suit is concerned has been held under the local Raja or Zamindar for a very long time in 24 shares. It

appears from Ex. IV which contains a descriptive report of the village made by the Inam Commissioner and an extract from the Government Inam

Register of 1864, that 6 of these shares were granted as dharmasanam on a favourable rent or poruppu to some Brahmins by Mahabalivan Raja at

an unknown date and that the remaining 18 shares were granted in 1794 by Marudappa Sarvakaran to certain persons on poruppu in connection

with the endowment of a chatram at Chudiyur. Whether the profits of the 18 shares were to be the endowment of the chatram or only the poruppu

was to be the endowment is not clear. But it appears that about 1835 the Zamindar of Sivaganga, the plaintiff''s predecessor, became the trustee of

the chatram, and from that time at any rate the poruppu of the 18 shares was treated as the endowment. The chatram part of the village is stated in

Ex. IV to be distinct from the dhamiasanam part. This suit is concerned only with the 18 shares of the chatram part, and the plaintiff sues as trustee

of the chatram for the recovery of the balance of poruppu for 3 faslis. The defendants are the present holders of the 18 shares. The plaintiff

contends that the defendants are jointly and severally liable for the whole poruppu on the T8 shares. The defendants contend that each of them is

liable only for the poruppu on the share or shares held by him.

(2) From Ex. IV it appears that the 18 shares were equal but that the land covered by them was not then divided. There is also a remark in Ex. IV.

Poruppu is paid on the number of vrithies equally and permanently.

But that remark appears to be made with reference to the two divisions of shares--viz., 6 dharmasanam shares and 18 chatram shares--and it will

be noticed that the area of wet and dry land granted as dharmasanam is exactly 1|3 in each case of the area granted to the chatram. I do not agree

with Mr. Sesha Aiyangar who appears for the defendants that the remark means that poruppu was being paid to the Zamindar on each of the 18

shares individually. I understand it to mean that the poruppu was fixed permanently and was paid proportionately on the 6 dharmasanam shares

and the 18 chatram shares. Ex. IV further shows that at its date the chatram 3|4 of the village to which the 18 shares relate was in the possession of

9 persons, to whom the 18 shares had passed from the original grantees or their successors by sale. The defendants are the assignees or heirs of

those 9 persons. D. W. 1 the only witness examined for the defendants states that the shares of those 9 persons are not shown in the inam register

because they were ""undivided"", by which he can only"" mean that the land held by them was undivided, as some of them were Hindus and others

Muhammadans. In Ex, IV doubt is thrown upon the right of the original grantees or their successors to sell the 18 shares; but there is no doubt that

it was by purchase that the 9 persons acquired the 18 shares which they held in different proportions. In these circumstances it is clear that the 9

persons must have held the land covered by the 18 shares as tenants-in-common. That being so, I see no reason to doubt that they were jointly

and severally liable for the whole poruppu on those shares. It is not suggested by the defendants that the 9 persons were trespassers. On the

contrary the defendants'' case is that these 9 persons were the lawful assignees of the original grantee, who held on a perpetual lease subject to a

covenant to pay the favourable rent or poruppu. By the assignments privity of estate between the 9 persons and Zamindar, as the trustee to whom

the poruppu had to be paid, had been established. As their tenancy-in-common gave each of them an interest in every part of the 3 4th of the

village covered by the 18 shares, the privity of estate between each of them and the Zamindar must have extended to the whole of that area. If that

view is correct, then the liability of each of them for the poruppu must have been equally extensive. It was only by privity of estate that they were

liable to the Zamindar for the poruppu. The liability of the assignee of a lease-hold by reason of privity of estate to pay rent to the landlord arises

with the assignment to him and ceases with a re-assignment by him, and the liability and the privity extend to the whole of the premises covered by

the assignment and no further. On those principles the assignee of a lessee tenant-in-common must be liable for the whole of the rent of the

property to which his tenancy-in-common relates. In limited Dairies v. Public Trustee (1923) 1 KB 469 Greer, J., stated that he was inclined to

this view, and he quotes the opinion of Kenny, J., in Dooner v. Odlum (1914) 2 Ir. R 41l to the same effect. In Jagan Mohan Sarkar v. Brojendra

Kumar Chakravarthi (1925) ILR 53 C 197 (FB) the majority of a bench of 5 Judges adopted this view as a step towards their decision in that

case; one of the dissenting Judges explicitly agreed with them on this point, and the other learned Judge contented himself with resting on a

previous judgment of his own in which this point was not discussed.

On the case being sent back to him, the Subordinate Judge has now found that the wet land in the chatram 3|4 of the village has been divided

among the defendants and that they are in possession of separate plots of it, but that, so far as they are concerned, the dry land in the chatram part

of the village is undivided. The Subordinate Judge has not found when the division of the wet land was made; but it is clear that it was done after

the date of Ex. IV. The finding is not disputed before us; nor is it disputed that the division of the wet land was made by the defendants or their

predecessors-in-title without reference to the Zamindar and before the faslis to which this suit relates. When the defendants or their predecessors-

in-title divided the wet land among themselves and took separate possession of separate plots according to the number of their shares, there was in

effect re-assignment to each sharer among them by all the other sharers of their interests in the land allotted to him. By that re-assignment the privity

of estate with the Zamindar of each sharer in respect of the whole wet land in the chatram 3 4 of the village other than that allotted to him came to

an end and a new exclusive privity of estate between him and the Zamindar arose in respect of the separate wet land allotted to him. From that

moment his liability as a tenant-in-common to pay rent for the whole wet land ceased, and he became liable, so far as the wet land was concerned,

only for the rent on the land allotted to him at the division. Had the defendants been heirs of original lessee tenants-in-common, they could not of

course have shuffled off their joint and several liability for the whole rent in this way by division among themselves without their lessor''s consent.

But, as things stand, in respect of wet land for the faslis in question the Zamindar is entitled to get from each of the defendants only the rent due on

his particular holding. For the dry land on the other hand the defendants as tenants-in-common are still jointly and severally liable for the whole

rent. The fact that no part of the dry land is in the actual possession of any of them but that it is held under them by sub-tenants some of whom

have occupancy right and others have a perpetual sub-lease, does not, as Mr. Sesha Aiyangar has suggested, in any way affect the position of the

defendants towards the Zamindar as tenants-in-common of the whole of the dry land.

It should not be difficult now for the Subordinate Judge to dispose of the suit if he can determine how much of the whole poruppu is attributable

to the wet land and how much to the dry land. If, as appears probable from the defendants'' contentions, the separate plots of wet land held by

them arc proportionate in value to the shares or fractions of shares out of the 18 held by each defendant, the apportionment of the poruppu on the

wet land among the defendants will be a simple matter of arithmetic. it is probable that each defendant will wish to appropriate what he has paid

already, if anything, first towards what is due on his separate wet land. If so, whatever any defendant has paid in excess of the amount due on his

separate wet land will go towards the amount due from all the defendants for the dry land. For any balance due on wet land the Subordinate judge

will make a decree against the defendant concerned individually, and for any balance due on the dry land he will make a decree against all the

defendants.

I agree with the proposal of my learned brother that the suit should be remanded to the Subordinate Judge for fresh disposal on these

principles and also with his proposal in respect of costs.