Subbaraya Goundan vs S. Ranganatha Mudaliar and Others

John Wallis, C.J.—The question involved in this appeal is whether a Zamindar or Mittadar who under his sannad has a right to collect the

jodi payable by an Inamdar, has a charge for arrears of such jodi on the interest of the Inamdar. Before considering this question it may be well to

refer to the right of Government to a charge for arrears of revenue, and to the rights of the Inamdar for arrears against the ryots themselves.

It was held by Innes, J. in Subbaraya v. The Sub-Collector of Chingleput ILR (1883) M. 303 that ""the right of the Government is only a right to

a charge on the land, and a right to forfeit by due course of law, the title of the person holding the land who does not pay the charge;"" and this was

cited with approval by Shephard, J. in Secretary of Stale v. Ashtamurthi ILR (1889) M. 89. In the present case the Government assigned its right

to revenue to the Inamdar subject to the payment of a jodi, and it is well-settled that by virtue of such assignment the Inamdar did not acquire a

charge upon the land, but was left to recover rent -from the occupiers under the provisions of the Madras Rent Recovery Act of 1865; and it was

not until the passing of the Act of 1908 that landholders, including certain Inamdars acquired a statutory charge for rent. As regards the jodi

payable by the Inamdar to Government it is, where it has not been assigned, recoverable by Government, like Zamindar''s peishcush by sale of the

Inamdar''s interest under the law in force for the time being, now the Revenue Recovery Act, 1864. u/s 2 of that Act the land, the buildings upon it,

and its products are to be regarded as the security for the public revenue; but provided they have paid the rent to the landholder the ryots are not

affected by the landholder''s default, to pay the revenue, due by him (Section 33) and all that Government can do is to sell the interest of the

defaulter free of all incumbrances. The right to sell free of incumbrances in such a case is conferred by Section 42 of the Act.

Coming now to cases where the right to collect the jodi has been transferred to the Zamindar or Mittadar under his sannad, there is a long series

of decisions in this Court that, when Government transfers the right to collect the jodi to a Zamindar or Mittadar in consideration of his undertaking

to pay a fixed peishcush, the Zamindar or Mittadar has no charge upon them and that a suit by him to recover jodi is a, suit for rent and nothing

more and so cognizable in this Presidency by the Court'' of Small Causes.

It was apparently so held in S.A. No. 692 of 1893 and though a different view was taken in. S.A. No. 822 of 1894, vide footnote in Vijay

anagram Maharajah v. Sitaramarazu ILR (1895) M. 100, it was again SO ruled by Shephard and Subramania Aiyar, JJ. in Mullapudi

Balakrishnayya v. Venkatanarasimha Appa Rao ILR (1896) M. 329, and Venkataqiri Rajah v. Venkata Row ILR (1897) M. 213. Gajapathi

Rajah v. Suryanarayana ILR (1898) M. 11 and Appa Rao v. Sobhanadri Rao ILR (1900) M. 158, are to the same effect; and in Kasturi, Gopala

Ayyangar v. Anantaram Thivari ILR (1902) M. 730, it was again laid down broadly that assignees of revenue cannot proceed u/s 42 of the

Revenue Recovery, Act. On the principle of stare decisis I feel bound to adhere to these decisions.'' The fact that jodi was held to be rent payable

to a landholder by a tenant within the meaning of the Rent Recovery Act, 1865, having regard to the definition of landholder See Lakshminarayana

Pantulu v, Venkatanarayanam ILR (1897) M. 116, and the cases there cited), and that similar provisions were to be found in the Madras Estates

Land Act 1908, until these provisions were themselves repealed by the Amending Act of 1903, has no direct bearing on the question but makes it

more than ever undesirable to question the authority of the decisions laying down the competency of the Small Cause Courts to try suits for jodi on

which the Legislature may have acted in finally deciding to leave such suits to the Civil Courts. The earlier cases of Suryanna v. Durgi ILR (1883)

M. 253, Alubi v. Kunhi Bi ILR (1886) M. 115 and Krishnasami v. Venkatarama (1890) 13 M. 319 were not cases of jodi, but assignments of

portions of the revenue payable directly by the ryot and in the last of these cases Shephard, J., who was a party to some of the later decisions

doubted if a mere assignment of revenue would convey a charge. In Ramachandra v. Jaganmohana ILR (1891) M. 161 the point did not arise.

These decisions in my opinion afford no sufficient ground for questioning the numerous subsequent decisions expressly in point. If the law there laid

down is to be altered it should, I think, be by legislature. We must reverse the decree in so far as it affects the 8th defendant and allow his appeal

with costs throughout. The memorandum of objections by the 7th defendant is dismissed with costs. As regards the defendants 2 to 6 the decree is

varied so as to make it a decree against the joint family property in their hands under Order 41, Rule 38 of the Code of Civil Procedure.

Scshagiri Aiyar, J.

It is not without hesitation that I have come to the conclusion that the appeal should be allowed.

The first question is whether the jodi due from the Inamdar is a charge upon the land. I understood Mr. Ramachandra Aiyar to concede that if it

is directly payable to Government, it would be a first charge. Apart from this admission, I am of opinion that there is a first charge for the jodi. It

was pointed out in Secretary of State for India v. Bombay Landing and Shipping Co. (1868) 5 B.H.C.R. 23 that by the common law of this

country, the debt due to the King took priority over other debts, with the possible exception of those due to Brahmins. The view was accepted in

some of the early Bengal Regulations, See Judah v. Secretary of State for India ILR (1886) C. 415. At the time of the permanent settlement, it

was recognised in Madras vide Section 6 of Regulation 27 of 1802. In the Revenue Recovery Act of 1861, there is an express provision to that

effect. I am satisfied that the jodi payable by Inamdars is within the purview of that Act.

Mr. Ramachandra Aiyar strongly relied upon some of the decisions of this Court which have held that a claim for kattubadi or jodi is cognizable

by the Court of Small Causes. They are all cases in which the payments were due to the Zamindar as part of his income. The term jodi or quit rent

is applied indiscriminately to what is recoverable by a proprietor from his undertenure-holders as well as to payments due to Government by way

of assessment. None of the cases, so far as I have examined them, related to jodi payable to Government. Further these decisions proceed on the

construction of the terms ''Landholder and tenant'' in Act VIII of 1865. The Estates Land Act is different. Even under the old Act, the decisions

were not uniform, See Alubi v. Kunhi Bi ILR (1886) M. 115 Vijiyanagaram Maharajah v. Sitaramraju ILR (1895) M. 103 (the case in the

footnote). It is true that a larger number of cases have taken a different view, Vijiyanagaram Maharajah v. Sitaramraju (1895) 19 M. 103

Mullapudi Balakrishnayya v. Venkata Narasimha Appa Rao (1896) 19 MAD. 329 Gajapathi Raja v. Suryanarayana ILR (1898) M. 11, Lingam

Krishna Bhupati Devu Vs. Vikrama Devu, and Appa Rao v. Sobhanadr Rao ILR (1900) M. 158. Mr. Justice Subramaenia Aiyar has explained in

Lakshminarayana Pantula v. Venkatrayanam I.L.R 21 (1897) M. 116 the reason of this change. Although on the principle of stare decisis it is

undesirable to upset this course of decisions, I am not prepared to extend them to cases in which the jodi is payableto Government.

The next point for consideration is whether the plaintiff can stand in the shoes of the Government and claim a first charge. If the right to collect

the jodi was assigned to him as such, I would be prepared to hold that he has a first charge. I accept Mr. Srinivasa Aiyangar''s contention that an

assignee of Government Revenue is entitled to the security which the Government had, although he may not have all the statutory remedies which

the assignor had. The principle of Section 141 of the Indian Contract Act is applicable to such assignment. North, J. in In re Lord Churchill:

Manisty v. Churchill (1888) 39 Ch. D. 174 says that the priority which the Crown has enures for the benefit of the surety. This is the view taken in

Suryanna v. Durji ILR (1883) M. 258 and Krishnaswami v. Venkatarama ILR (1890) M. 319. In Gopala Aiyangar v. Anantaram Thivari I.L.R 26

(1902) M. 730 the learned Judges say that if the tax-payer was in a position to be proceeded against by the Government, the assessment will be a

charge. I understand that decision to lay down that so long as the distinctive character of Government assessment remains, whoever maybe the

person that collects it, he will have a first charge. If it lays down that under ho circumstances can an assessment which is collected by an assignee

create a charge, I respectfully dissent from that view.

The difficulty in this case arises in finding out whether the jodi as such was assigned to the plaintiff''s predecessor-in-title. The sannad is not

produced. We are not in a position to say whether in the Permanent Settlement a distinction was made between the right to collect the jodi and the

right to collect from tenants. It cannot be said that the jodi was not included in the assets on which the peishcush was fixed. One circumstance on

which Mr. Ramachandra Aiyar laid stress has influenced my finding on the point. From Exs. G and H, it appears that the Government decided to

claim the entire jodi as the Mittadar had been given waste lands in other villages to which he was not entitled. It was argued by the learned Vakil

for the Appellant that the income from these waste lands was taken into account in including the whole of the jodigai peishcush. I think there is

force in the argument. If this is the correct view, the Government did not assign the jodigai as such; and therefore the Mittadar cannot claim a first

charge. This state of affairs can only be rectified by Government.

I agree in the order proposed by my Lord.