John Wallis, C.J.
1. 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.
2. It was held by Innes, J. in Subbaraya v. The Sub-Collector of Chingleput I.L.R. (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 I.L.R. (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. Under Section 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.
3. 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.
4. 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 I.L.R. (1895) M. 100, it was again SO ruled by Shephard and Subramania Aiyar, JJ. in Mullapudi Balakrishnayya v. Venkatanarasimha Appa Rao I.L.R. (1896) M. 329, and Venkataqiri Rajah v. Venkata Row I.L.R. (1897) M. 213. Gajapathi Rajah v. Suryanarayana I.L.R. (1898) M. 11 and Appa Rao v. Sobhanadri Rao I.L.R. (1900) M. 158, are to the same effect; and in Kasturi, Gopala Ayyangar v. Anantaram Thivari I.L.R. (1902) M. 730, it was again laid down broadly that assignees of revenue cannot proceed under Section 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 I.L.R. (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 I.L.R. (1883) M. 253, Alubi v. Kunhi Bi I.L.R. (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 I.L.R. (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.
5. It is not without hesitation that I have come to the conclusion that the appeal should be allowed.
6. 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 I.L.R. (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.
7. 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 I.L.R. (1886) M. 115 Vijiyanagaram Maharajah v. Sitaramraju I.L.R. (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 I.L.R. (1898) M. 11, Lingam Krishna Bhupathi Deva v. Vikrama Deva : (1900)10MLJ256 and Appa Rao v. Sobhanadr Rao I.L.R. (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.
8. 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 I.L.R. (1883) M. 258 and Krishnaswami v. Venkatarama I.L.R. (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.
9. 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.
10. I agree in the order proposed by my Lord.