Puthempurayal Amman Pariyayi and Others vs Mangalasseri Pullikkandi Pakran Haji

Miller, J.—The District Judge bases his decision on the ground that the plaintiff and defendants are co-owners in the Parambas on which the

Plaintiff has paid the land revenue, but the allegations in the plaint do not seem to support this view. The Plaintiff ip the plaint alleges that the

defendants are by a karar which is not on the record, owners in Jenm right of one of the three parambas contained in the survey-field in question

and that he himself is the owner in Jenm right of the. other two. The Plaintiff does not claim any interest in the paramba of defendants, nor admits

that the defendants have any interest in his parambas.

The District Munsiff gave him leave to amend his plaint and on the Karar by which the parambas were divided but he failed to take advantage of

the opportunity so given. If then the District Judge''s order is to be supported it must be on the ground that the fact that the Survey field is

undivided for purposes of the assessment of the land revenue upon it, brings the case within the rule established so far as we are concerned by the

Full Bench of this Court in Rajah of Vizianagaram v. Rajah Setrucherla Somasekhara-raz ILR (1902) M. 581.

Now in that case both Bhashyam Aiyangar J. (in the referring order) and Benson], were inclined to hold that Sections 82 and 100 of the

Transfer of Property Act were applicable and the former learned judge points out (at page 709), that those sections'' would clearly have applied

but for the fact that the property then in question was not strictly the "" several properties of several owners."" Here on the plaint the parambas are

the several properties of several owners and they are all charged by reason of the Revenue Recovery Act, with the payment of a single debt, the

revenue assessed on the survey ''field. I have no doubt that Bhashyam Aiyangar J. and I think also Benson would have held in the present case that

the plaintiff is ''entitled to a charge by virtue of Section 82, Transfer of Property Act read with Section 100.

I should be content to base my decision on the Transfer of Property Act on the authority of those learned judges, but it may equally rest on the

principle of equity on which both Subramania, Aiyar J. and Benson J. rested theirs in the same case in delivering the judgments of the Full Bench.

The principle does not I think depend on the parties being co-owners in the lands : they must be co-sharers of the burden, arid in this case, as the

pleadings shew the burden is common to the plaintiff and defendants because their lands are both charged with the payment of the whole revenue.

It is true that defendants are not debtors of the Government not being the registered pattadars but their land is none the less subject to the burden

and has been by this plaintiff relieved of it. But as the common burden is a burden on the land only, as the Government could recover the revenue

only from defendant''s land and not from them personally, so all that plaintiff is entitled to is a charge on the land for the amount if any paid by him.

I think therefore that though the District judge is wrong in holding the plaintiff and defendants to be co-owners of the land, so far as the pleadings

have at present disclosed their position he is right in reversing the decision of the District Munsif on the 2nd issue. I do not think we can or need

decide what are the interests of the parties in the land. The plaintiff if he has paid the revenue s entitled to a charge on the lands and the ether issues

in the suit must be decided. I would therefore confirm the order of the District Judge and dismiss the appeal with costs.

Sadasiva Aiyar J. I entirely agree. The case of Subramania Chetty v. Mahalinjasami Sivan ILR (1909) M. 41 went upon the ground that a

person who, as Pattadar, pays the whole revenue on the pattah land cannot sue for a mere money contribution from the owner of a share in the

pattah land, that is, cannot get a personal decree for money claimed as due on such share because neither Section 35 of the Revenue Recovery

Act, nor Section 69 of the Contract Act gives the pattadar such right or imposes an obligation to pay on the owners of the share.

The question whether when several shares in the same land or when several lands are liable under a common burden the discharge of the whole

burden by the owner of a distinct share or a distirict land would give him a charge on the remaining shares or lands for the proportionate sums they

were equitably liable for was not gone into in Subramania Chetty v. Mahalingasami Sivan ILR (1909) M. 41 but was on the other hand expressly

decided in Rajah of Vizianagram v Rajah Setrucheda Somasekhararaz ILR (1902) M.581 The reason why it was not gone into in Subramania

Ohetty v. Mahalinjasami Sivan ILR (1909) M. 41 was because the question did not arise in that case.

In the present case the plaintiff claims recovery of the proportionate sums chargeable as revenue in defendant''s paramba both from defendants

personally and by sale of defendants'' parambas on which he claims a charge for such proportionate sums. It may be that Subramania Chetty v.

Mahalingasami Sivan ILR (1902) M.581 would prevent plaintiff from getting a personal decree against defendants for any portion of such amount.

The case of Rajah of Vizianagaram v. Rajah of Setrucherla Somasekhararaz ILR (1902) M. 581 undoubtedly prevents him from getting such a

personal decree for more than three years'' dues. But the ratio of the decision in that case allows him clearly a charge on defendants'' parambas for

the proportionate dues the limitation period being twelve years under Article 132. The present, suit claims a charge for the dues of only six years

before suit.

A co-owner or co-sharer may not be liable personally to contribute towards sums paid to remove a burden on his property also, the whole

burden being jointly imposed on the payer''s and his co-owner''s property. He may not have cared to discharge the burden as he might have been

content to lose the property itself as not worth the expense of the removal of the burden. It may therefore not be equitable to give a personal

decree against him as the contribution required may be larger than the value of his property. But these considerations do not apply to the claim for

a charge on his share for a proportionate share of the burden. The case of Rajah of Vizianagaram v. Rajah Setrucherla Somasekhararaz ILR

(1902) M. 581 allowing such a charge has been followed in Alayakammal v. Subramania Goundan ILR (1905) M. 493 the limitation to enforce

such a charge being twelve years I find also that in Sri Maharaja Parbhu Narain Singh v. Babu Beni Singh (1911) 14 C.L.J. 36 the learned judges

while refusing plaintiff''s rights to rely on Section 69 of the Contract Act, gave him a charge on the defendant''s share for the proportionate fraction

of the amount paid by plaintiff to discharge the burden on all the shares.

The remand order of the District judge is therefore right and the appeal will be dismissed with costs.