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The Maharaja of Pittapuram Vs. Sri Chelikani Venkatarayanim Garu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in122Ind.Cas.526; (1929)57MLJ260
AppellantThe Maharaja of Pittapuram
RespondentSri Chelikani Venkatarayanim Garu
Cases ReferredBunwari Lal v. Daya Sunker Misser
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - ..........j.1. the question that has been referred to me is, what is the court-fee payable in respect of the memoranda of objections in second appeals nos. 141 to 144 of 1928. the original suits were instituted by ryots under section 95 of the madras estates land act. in the plaint there are distinct allegations to the effect that proper notice was not served on the ryots and that the amount of rent due was wrongly stated in the demand. the first court dismissed the suits filed by the ryots, but on appeal by the ryots the lower appellate court came to the conclusion that the amount of rent due was not rs. 4,000 and odd but only rs. 2,000 odd. accordingly, the lower appellate court reversed the decrees passed by the first court dismissing the suits, and in modification of the said decrees declared.....
Judgment:
ORDER

Anantakrishna Aiyar, J.

1. The question that has been referred to me is, what is the Court-fee payable in respect of the memoranda of objections in Second Appeals Nos. 141 to 144 of 1928. The original suits were instituted by ryots under Section 95 of the Madras Estates Land Act. In the plaint there are distinct allegations to the effect that proper notice was not served on the ryots and that the amount of rent due was wrongly stated in the demand. The first Court dismissed the suits filed by the ryots, but on appeal by the ryots the Lower Appellate Court came to the conclusion that the amount of rent due was not Rs. 4,000 and odd but only Rs. 2,000 odd. Accordingly, the Lower Appellate Court reversed the decrees passed by the first Court dismissing the suits, and in modification of the said decrees declared that the distraint made by the landlord was not wholly void but was valid only to the extent of Rs. 2,000 odd, the amount of rent found by it. The landlord has preferred these Second Appeals Nos. 141 to 144 of 1928. The ryots, who are the respondents, have filed memoranda of objections in each of these second appeals; and the question that has been referred to me is, as I have already stated, what is the proper amount of Court-fee payable in respect of these memoranda of objections.

2. In order to find out what exactly is the amount of Court-fee payable in respect of a document, one has to see, first of all, what the exact nature of the document is. I have read through these memoranda of objections and I am not able to find any ground which goes to impugn the distraint proceedings in toto; on the other hand what I find is that each one of the grounds taken in the memoranda only attacks the finding of the Lower Appellate Court as to the exact amount due to the landlord. Thus my decision is confined to a case where it is not the whole of the distraint that is sought to be set aside by virtue of some plea which goes to the root of the whole matter; in the present cases the objection taken by the ryots to the decree of the Lower Appellate Court is confined, as I understand the same, to the question of the amount of rent due. Therefore the question that I have got to ask myself is this: Is the subject-matter of these memoranda of objections capable of being estimated in money value within the meaning of Clause 17(b) of Schedule II of the Court Fees Act. Before I consider this question, it may perhaps be convenient that I should refer to one or two Sections of the Estates Land Act which deal with the question as to how far distraint proceedings could be held to be partly valid and partly invalid. Section 53(2) enacts that a patta tendered by a landholder which in the opinion of the Collector is partially but not entirely correct shall nevertheless be enforceable to the extent to which it is found to be correct. Reference was made by the learned Government Pleader to S.104 also of the Estates Land Act in this connection. The learned Advocate who appeared for the ryots argued that Clause (2) of Section 53 would apply only to suits for acceptance of pattas and muchilikas and that the section could not apply to suits such as these I have now to deal with, namely, suits brought under Section 95 to set aside distraint proceedings. I find on a reference to the case of Raghunatha Row Saheb v. Vellamoonji Goundan : AIR1915Mad86 that this very question came up for consideration before two learned Judges of this Court, Oldfield and Seshagiri Aiyar, JJ., and both of them came to the conclusion that the application of the section was not confined to patta suits as is now contended for by the learned Advocate on behalf of the ryots. I need not go into the details of the reasoning of the learned Judges, for the said decision is binding upon me. It was held in that case that a distraint could be upheld to the extent of the amount legally due to the landlord though the landlord purported to effect the distraint in respect of a larger amount. This is a decision under the present Estates Land Act, and consequently is a direct authority on the construction of the section in question. I may just quote one sentence from the judgment of Seshagiri Aiyar, J., at page 1143 of the report:

It would serve,' His Lordship says, 'no purpose therefore to enact in Clause (2) of Section 53 that the landlord can enforce his claim for rent in a Revenue Court in so far as the patta correctly states it. If the decisions prior to the Estates Land Act can furnish any assistance, 1 feel no doubt that they would support this conclusion of mine. Prior to the passing of the new Act, the predominant view was that a distraint for an excess amount should not be avoided altogether.

3. Before the Estates Land Act no doubt there was some difference of opinion on this particular point but as remarked by Seshagiri Aiyar, J., the predominant view was that a distraint would be valid to the extent of the rent properly due. In Venkatakrishna Pillai v. Muthialu Reddy : (1910)20MLJ821 . Sir Arnold White, Chief Justice, and Krishnan, J., say as follows:

It is argued that the attachment is bad as it was for a larger amount than what the District Judge held to be due. It has been held by this Court in recent cases that the attachment is good for the amount actually due. A case of sale stands on a different footing from a case of attachment. The case before us is only one of distraint, not of sale.

4. The learned judges held that the distraint was valid to the extent of the proper amount of rent due. A similar view was also taken in Bhupatirazu v. Ramasami I.L.R.(1900) M. 268. where the distraint was made in respect of a sum of Rs. 44-6-0, whereas the amount due was only Rs. 22-3-0, just half the amount claimed by the landholder; and the Court held that the distraint was valid to the extent of Rs. 22-3-0 found by the Court to be properly due.

5. Having regard to the predominant view that prevailed in Madras prior to the enactment of the Estates Land Act. and having regard to the decision in Raghunatha Row Saheb v. Vellamoonji Goundan : AIR1915Mad86 . on, Section 53 of the present Act, there could be no doubt on the question that it is open to Courts to declare a distraint valid in part and invalid in part. The decree of the Lower Appellate Court, in the cases before me, as 1 have mentioned already, declared the distraint to be valid to the extent of Rs. 2,000 odd. It is against such a. decree these memoranda of objections have been filed, and as the memoranda raise no question that goes to the root of the whole matter and render the whole distraint invalid, and since the grounds raise only questions as regards the exact amount of rent due, I think that the present is a case which does not come within Clause 17(b) of Schedule II of the Court Fees Act. The conclusion I have come to is that it is possible to estimate at a money value the subject-matter in dispute in these memoranda of objections. On the side of the Crown my attention was also drawn to Clause 8 of Section 7 of the Act where the legislature deals with suits to set aside attachment of lands as capable of being so valued. The case in Bunwari Lal v. Daya Sunker Misser 13 C.W.N. 815 was also quoted as throwing light on the question as to what exactly is the meaning to be attached to the words 'capable of being estimated in money value' occurring in Clause 17(b) of the Court Fees Act.

6. For the reasons i have mentioned, I have come to the conclusion that the memoranda of objections in the cases before me are capable of being estimated in money value, and consequently the Court-fee payable in respect of the same is not the fixed fee of Rs. 15 but an ad valorem fee on the value of each of these 'memoranda. The learned Advocate for the ryots will be called to specify the value of these memoranda and pay ad valorem fee thereon within a month.


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