Sri Chockanathaswami, Parthibanur through its Archakar and Hereditary Trustee Subramania Bhattar vs Allapichai Rowther

Maharajan, J.—These two civil Miscellaneous second appeals arise under the following circumstances. Sri Chockanathaswami, Parthibanur,

is the inamdar of certain lands of which Allapitchai Rowther, the respondent is the kudiwaramdar. The inamdar instituted two suits against the

kudiwaramdar, one in O.S. No. 336 of 1961, on the file of the District Munsif, Manamadurai, and another in O.S. No. 89 of 1963, on the file of

the same Court, for recovery of arrears of rent due for faslis 1371 and 1372 respectively. He also filed O.S. No. 215 of 1961, against the same

kudiwaramdar, for recovery of arrears of rent in respect of three prior faslis, namely faslis 1368 to 1370. These suits were contested by the

respondent, but on 26 July 1963, they were all decreed as prayed for with costs. The kudiwaramdar preferred appeals, A.S. Nos. 41 to 43 of

1966, on the file of the Subordinate Judge''s Court, Sivaganga, against the judgments and decrees in the three suits, and, on 7th December 1966,

the judgments of the trial Court were substantially confirmed, with certain modifications as to the quantum of the arrears payable by the

kudiwaramdar. In between the date of the trial court''s judgment and the date of the appellate court''s judgment an event of great importance took

place, namely the enactment of the Madras Minor loams (Abolition and Conversion into Ryotwari) Act, 1963, and under sub-S. (2) of S. 2 of the

Act, the ""appointed day"" has been defined as the date appointed by the Government under sub-S.(4) of S. 1. In exercise of the powers conferred

by the proviso to sub-S-(4) of S. 1 of the Act, the Governor of Madras appointed 15th February 1965 as the date on which the provisions of the

said Act were to come into force. This Act granted very considerable concessions in favour of the kudiwaramdar. Sub-S(1) of S.41 provides :

Notwithstanding anything contained in this Act, in the case of a minor inam all arrears of rent payable by person to an inamdar in respect of any

land in such inam and outstanding on the appointed day shall, to the extent to which such arrears are in excess of the rent due for three fasli years in

respect of that deemed to be discharged whether or not a decree has been obtained there for if such person pays to the inamdars the arrears of

rent due for a period of any three fasli years.

Sub-S. (2) of that Section provides:

In any suit or proceeding for the recovery of any arrears of rent referred to in sub-S.(1) the Court or authority concerned shall, upon deposit in the

Court or before the authority, or upon proof by the ryot of the payment, of arrears of such rent for three fasli years, dismiss the suit or proceeding.

Sub-S. (3) provides:

If before the appointed day, any decree or order has been passed in any suit or proceedings for the recovery of any arrears of rent due from a

ryot, which is inconsistent with the provisions of this Section, the Court or authority concerned shall, upon deposit in the Court or before the

authority, or upon proof of the payment, of the arrears of rent due from the ryot for any three fasli years and on the application of any person

affected by such decree or order, whether or not he was a party thereto, vacate the decree or order.

There is an important proviso to sub-S.3 of S.41 and it reads as follows:

Provided that nothing contained in this section shall apply to any suit or proceeding in which the decree or order has been satisfied in full, before

the appointed day.

Sub-S.(4) of S.41 prescribes that the provisions of that Section shall have effect notwithstanding anything inconsistent therewith contained in the

Madras Estates Land (Reduction of Rent) Amendment Act, 1963. There is an Explanation to the whole Section which says:

For the removal of doubts it is hereby declared that the payment, or deposit, of arrears of rent for three lash years referred to in this Section shall

be payment or deposit made after the appointed day.

A reading of the different provisions of this Section makes it clear that the Legislature did not intend to reopen payments of rent made prior to the

appointed date and to re-appropriate the same towards ""rent for three fasli years"", mentioned in sub-S. (1) of S. 41. If the kudiwaramdar were in

arrears on the appointed date for more than three faslis, payment by him of rent for any three faslis would discharge him of all liability by way of

arrears of rent. But, he cannot, by making payment of rent due for three faslis, force the landlord to disgorge himself of any amount which he might

have realised by way of arrears of rent prior to the appointed date. What happened in this case was that, even prior to the trial court decree, dated

26th July, 1963, the kudiwaramdar bad deposited into court certain amounts by way of security. The trial court, while granting the decrees in

favour of the inamdar, directed the inamdar to withdraw the amounts, which the kudiwaramdar Had deposited by way of security in partial

discharge of the decrees and realise only the balance of the amount due by executing the decrees against the kudiwaramdar. It was in pursuance of

those directions and immediately after the date of the decrees that the inamdar withdrew the amounts, which the kudiwaramdar had deposited into

Court. Be it noted that these withdrawals were made before 15th February, 1965, the date on which the Madras Act 30 of 1963 came into force.

These amounts were withdrawn by the inamdar and appropriated towards the decrees obtained by him. Subsequently, however, the appellate

court, on 7th December, 1966, confirmed the decrees, but reduced the amount payable by the kudiwaramdar under each decree. The amounts

that the inamdar had withdrawn out of the deposits made by the kudiwaramdar were much less than the amounts actually decreed by the appellate

court. It cannot therefore, be said that under S.144 of the C.P.C. the inamdar became liable to repay the amounts by way of restitution as a result

of the variation or modification of the decrees of the trial court. But what learned counsel for the Kudiwaramdar contends is that, after the coming

into force of Madras Act 30 of 1963, he deposited into court the rent due for three faslis, that thereby his liability for all arrears of rent due to the

inamdar has been fully discharged and that inasmuch as in execution of the decree in O.S. Nos. 336 of 1961 and 89 of 1963 the inamdar had

withdrawn the amounts deposited by the kudiwaramdar into court and those amounts are in excess of the rent due for three fasli years, the inamdar

must be directed to repay the said amount to the kudiwaramdar. This is an argument which the learned District Munsif rejected, but the first

appellate court accepted. I am unable to agree with the first appellate court. The withdrawal of the amount in deposit in court had been effected by

the inamdar long prior to the ""appointed date"" mentioned in the Act. That amount having been withdrawn and appropriated towards the decrees, it

became rent that had been realised by the inamdar prior to the appointed date. As I have already observed, the Section does not enable the

kudiwaramdar to reopen payments made before the appointed date and to call upon the inamdar to re-appropriate the same towards the rent for

three faslis, the payment of which would exonerate the kudiwaramdar of all liability for the entries arrears of rent. Learned counsel for the

respondent advanced two arguments in support of the contention that restitution must be ordered. The first argument turns upon the letter of the

proviso to sub-S. (3) of S.41. The proviso says that nothing contained in that Section shall apply to any suit or proceeding in which the decree or

order ""has been suit filed in full"" before the appointed day. Mr. Balasubramaniam for the respondent says that the decrees in O.S. No. 336 of

1961 and 89 of 1963 had not been satisfied in full before the appointed date and therefore the provisions of S. 41 shall apply to these

proceedings. I an afraid that the construction placed by him upon the proviso is too narrow and too literal for acceptance. What the draftsman

must have meant was that nothing contained in S. 41 shall apply to a claim in which the decree on order has been satisfied in full or in part. That

this is the correct interpretation is reinforced by the wording of the Explanation to the Section, which says that:

for the removal of doubts (which evidently the draftsman anticipated) it is hereby declared that the payment or deposit of arrears of rent for three

fasli years referred to in this section shall be payment or deposit made after the appointed day

The payment towards the two decrees in this case had been made prior to the appointed date, and it is not therefore, lawful for the court to direct

the inamdar to discharge himself of the amount which he had realised in pursuance of a decree passed by a component tent court long before the

appointed date.

The second argument of the learned counsel is that the suits in O.S. Nos. 336 of 1961 and 89 of 1963 were continued by the appeals preferred

by the kudiwaramdar in the Subordinate Judge''s Court and were concluded only on 7th December 1966, that is to say, after the appointed date

and therefore, the kudiwaramdar is entitled to the concessions by this statute. I fail to see how the termination of the appeals after the appointed

date can be used to reinforce the argument of learned counsel. The relevant thing to consider is the date on which the payment towards the decree

was made. The payment was made out of the moneys deposited by the kudiwaramdar long before the appointed date and applied in partial

discharge of the decrees. If those decrees had been set aside by the appellate court, it goes without saying that under S. 144 of the C.P.C. the

inamdar would be liable in restitution. But what the appellate court did was to confirm the decrees with certain minor variations as to the quantum

of the amount payable, and the quantum fixed by the appellate court itself was something which was higher than the amount which the

kudiwaramdar had deposited into court and the inamdar withdrew in execution of his decrees. I am therefore unable to accept the argument that

the inamdar is liable in law to repay the amount which he had realised before the appointed date in execution of a lawful decree passed by a

competent court.

Consequently, I set aside the orders of the appellate court, and restore those of the court of first instance. Both the civil miscellaneous second

appeals are allowed with costs. Leave granted.