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Collector of Salem Vs. Pur Batcha Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Reported in(1906)16MLJ468
AppellantCollector of Salem
RespondentPur Batcha Sahib and ors.
Excerpt:
- - no doubt the partition to which the 3rd defendant and the plaintiff's vendor were parties, was a transaction in the chain of title, which the plaintiff would have to make out if any question arose as to his vendor's right to convey, but the 3rd defendant was clearly not a party to the particular alienation in respect of which the application is made. that objection was clearly unsustainable, for the agreement to apportion the peishcush made between themselves by the parties was not binding on the government and would have had to be disallowed......dealing with the objection raised, declined to pass orders on the plaintiff's application. the government pleader urges that, in the circumstances of this case, the collector had no jurisdiction to make the registry and sub-division. his argument was that the 3rd defendant who objected and who was one of the parties in whose name the estate stands registered, was within the meaning of the act, a party to the alienation, and, as he did not concur, the collector was not at liberty to proceed further. we cannot accede to this argument. no doubt the partition to which the 3rd defendant and the plaintiff's vendor were parties, was a transaction in the chain of title, which the plaintiff would have to make out if any question arose as to his vendor's right to convey, but the 3rd defendant.....
Judgment:

1. The question is as to the costs of the plaintiff which have been, by the Court below, ordered to be paid to him by the 1st defendant, the Collector of the District. Under Madras Act I of 1876, the Collector is authorised to order separate registration and sub-division when there has been an alienation of a. portion of a peramanently settled estate, if the parties to the alienation concur in applying for an order and if objections, if any, taken by other parties interested and disallowed by him.

2. In the present case, the plaintiff claims under an alienation made by the deceased father of the 2nd defendant, and the 2nd defendant who is the representative of the alienor concurred in the application to the Collector for separate registration and subdivision.

3. The 3rd defendant who holds a share in the mitta in which the plaintiff is a shareholder under his alienation, raised an objection to the separate registration and sub-division of the plaintiff's portion on the ground that the parties had agreed under a partition between the alienor and the other co-sharers to apportion the peishcush payable by each shareholder, and that the amount of peishcush to be fixed by the Collector as payable by the plaintiff ought not to differ from the amount fixed by the agreement.

4. The Collector without dealing with the objection raised, declined to pass orders on the plaintiff's application. The Government Pleader urges that, in the circumstances of this case, the Collector had no jurisdiction to make the registry and sub-division. His argument was that the 3rd defendant who objected and who was one of the parties in whose name the estate stands registered, was within the meaning of the Act, a party to the alienation, and, as he did not concur, the Collector was not at liberty to proceed further. We cannot accede to this argument. No doubt the partition to which the 3rd defendant and the plaintiff's vendor were parties, was a transaction in the chain of title, which the plaintiff would have to make out if any question arose as to his vendor's right to convey, but the 3rd defendant was clearly not a party to the particular alienation in respect of which the application is made. As pointed out by Mr. Sivaswami Aiyar for the 3rd defendant, the terms 'alienor' and 'alienee' in the Act are reciprocal, and necessarily imply only those parties between whom the reciprocal relation exists.

5. To accede to the Government Pleader's contention would involve this anomaly that the alienor in the last series of transactions would be alienee in respect of that under which he obtained title, and the term 'alienor' would have to be read as 'alienor', alienee, and so on, until the alienation effected by the registered proprietor was reached. Such a construction is inconsistent with the ordinary meaning of the term 'alienor'. The argument of the Government Pleader proceeds, on the assumption that the term 'alienation' refers only to an alienation by a person whose name is entered in the Collector's register; but we think there is no foundation for this view, and Section 8 of Madras Regulation XXV of 1802, on which the Government Pleader relied, plainly implies the contrary.

6. We are, therefore, of opinion that the Collector was mistaken in supposing that he had no jurisdiction to effect the separate registry in this case. Under the Act it was his duty to enquire into the objection raised by the 3rd defendant, and if he disallowed it to grant the plaintiff's application.

7. We think there was, in these circumstances, some justification for the order of the District Judge making the Collector pay the plaintiff's costs. The Collector was not, however, solely to blame as it was the objection raised by the 3rd defendant which gave rise to the suit. That objection was clearly unsustainable, for the agreement to apportion the peishcush made between themselves by the parties was not binding on the Government and would have had to be disallowed.

8. We modify the decree of the District Judge by directing that the Collector do pay one moiety and the 3rd defendant the other moiety of the plaintiff's costs in the suit.

9. The Collector must pay the plaintiff's costs of the appeal.


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