1. The plaintiff's husband and the second defendant's (appellant's) father were brothers. The plaintiff's husband died in 1925; and her case is that her husband became divided from the second defendant's father in 1910 and that they had been in separate enjoyment of their respective shares of the property. In 1937, the plaintiff got herself recognised by the Vizianagaram Samasthanam as a joint pattadar with the appellant on the recommendation of a Revenue Inspector. Later on, when she applied for a separate patta, the Samasthanam sent a surveyor to demarcate the land and measure it, so that it could ascertain what portion of the rent was due from her. While attempting to do so, the servants of the Samasthanam were obstructed by the appellant; and so the Samasthanam expressed itself unable to grant a separate patta as requested. Hence the suit under Section 55 of the Madras Estates Land Act for a separate patta.
2. The first Court held that the plaintiff's husband had not become divided from his brother and that she was not therefore entitled to any share in the property. It further held that she had not adopted the proper procedure in filing a suit under Section 55 of the Madras Estates Land Act. It therefore dismissed the suit. In appeal, the learned District Judge discussed very summarily the question whether the suit under Section 55 was maintainable; and on the other evidence found that she had proved that her husband had become divided from the second defendant's father and that she was therefore entitled to a separate patta. He therefore directed the Samasthanam to issue a patta.
3. Most of the arguments in this Court have turned on the interpretation of Section 145 of the Madras Estates Land Act, the question being whether the plaintiff was bound to adopt the procedure laid down in Section 145(6) or whether the suit in the present form was the appropriate remedy for the plaintiff. Section 145(1) says that the landholder is bound to recognise any transfer or devolution of property; and Sub-section (5) is to the same effect. Sub-section (6) provides a summary procedure in case of a difference between the parties interested in the holding, enabling any party to the dispute to apply to the Collector for a certificate that there was a devolution of the property. If he obtained a certificate, the landholder was bound to recognise the devolution and to issue a patta and to enter the name of that person in the accounts as a ryot of the whole or portion of the holding. Under Sub-section 7(ii) the landholder is bound to issue a joint patta in cases where the land has not been divided by metes and bounds. If the portion has been divided by metes and bounds, then under Sub-section 7(ii) the landholder is bound to enter into separate engagements wtith the holders of the sub-divisions. The plaintiff complains that the landholder has not done his duty under Section 147(7)(iii).
4. The learned advocate for the appellant contends that the landholder cannot recognise a devolution of interest without making some enquiry, and that if he finds that there is any dispute he is bound to refuse to recognise an alleged devolution and must refer the parties to the Collector for a certificate. I find no authority for such a contention. Section 145 does not prevent a landholder from recognising any person's claim to have a right to property by devolution of interest and certainly does not provide for a quasi-judicial enquiry by him. Section 145(6) merely provides an easy remedy of which one of the parties may avail himself in case the landholder is unable or unwilling to fecognise a devolution of interest because of the existence of a dispute.
5. I am of opinion that the better course for the plaintiff to have adopted would have been to have approached the Collector under Section 145(6) of the Madras Estates Land Act. Her learned advocate says that that is not so; because the Samasthanam had already recognised a devolution of interest of a portion of the property which had been separated by metes and bounds. There is some ground for this argument, in that in 1937, the Samasthanam recognised some title in the plaintiff by entering her name as a joint holder; but what exactly were the rights recognised is open to question. The learned District Judge said in paragraph 9 of his judgment that the Vizianagaram Samasthanam had always recognised the separate possession and enjoyment of the plaintiff; but that statement seems to have been based only on the report of the Samasthanam surveyor. It seems to me clear from the facts that the Samasthanam felt itself unable to issue a separate patta, though it was willing to do so. The Samasthanam did not however definitely recognise a devolution of interest in the specific part of the holding, namely, that part of the holding which the plaintiff claims as hers.
6. Although it would have been better had the plaintiff adopted the procedure permitted to her under Section 145(6) of the Madras Estates Land Act, I cannot find any reason for saying that this suit is not maintainable because of the provisions of this Sub-section. She had some ground for thinking that the Samasthanam had recognised her separate enjoyment and she may therefore have thought that if that were so she was entitled to a separate patta. I therefore find no reason for declaring that all the proceedings in the three Courts are void and that the only thing the plaintiff can do now is to seek the adjudication of the Collector and a certificate from him. There has been a summary adjudication by a Revenue Divisional Officer and by the lower appellate Court on the question whether the plaintiff is entitled to a separate patta, and that question has been determined and as this suit is maintainable, the District Judge's decision will be binding on the Samasthanam and on the appellant until the appellant establishes his rights in a Civil Court.
7. The appeal is dismissed, except that in view of the fact that the plaintiff has adopted this costly procedure instead of the simple procedure of applying to the Collector under Section 145(6) of the Madras Estates Land Act, it would not be right to mulct the second defendant appellant with the plaintiff's costs. The parties will bear their own costs throughout.