1. I think the decree is right. The plaintiff paid the arrears, as mortgagee, and not because the pattah still stood in his name. The facts that part of the land in the pattah was in the possession of the appellant and that the appellant paid a proportionate amount of the assessment are immaterial. The land in the possession of the appellant was none-the-less liable to be sold for the arrears due under the pattah. Srinivasa Thathachar v. llama Ayyan 17 M. 247 is authority for holding that the defendants including the appellant were defaulters within the meaning of Section 35 of Act II of 1864, and the plaintiff is entitled to recover under that section. Boja Sellappa Reddy v. Vridachala Reddy 30 M. 35 : 16 M.L.J. 596 : 1 M.L.T. 323 is not opposed to this view. The question whether the plaintiff in that case could recover under Section 35 was considered and the reasons given for holding he could not, were that it was not shown that the payment was made by the plaintiff to obtain the release of the land from attachment and that even if it were so, 'the plaintiff was not a tenant, mortgagor or incumbrancer' as required by the section.
2. In Fasli 1316 the plaintiff who is the registered pattahdar, but no longer the real owner of the land in suit, paid in the capacity of mortgagee, the balance of land revenue due on the land to release it from attachment.
3. He sued defendants Nos. 1 to 4, the real owners, for the amount so paid under section. 35 of Act II of 1864. Defendants Nos. 1 to 3 were ex parte. The Subordinate Judge gave a decree as prayed. On behalf of defendant No. 4, it was proved that he had paid the remaining one-quarter of the revenue due and that he separately enjoyed one-quarter of the land. The respective payments were made on the undermentioned dates: Payments by the 4th defendant on the 2nd February, the 11th March and the 19th April 1907, and payment by the plaintiffs on the 4th May 1907. It was proved that before the first of these payments, that is, on the 31st December 1906, the 4th defendant had obtained against the plaintiffs a decree for separate registry of his one-quarter share of the land. The following facts are also admitted: That defendants Nos. 1 to 4 were members of an undivided family when the land was sold by the plaintiff to the 1st defendant and also when the 1st defendant executed a simple mortgage in respect of it back to the plaintiff; that after the executing of this mortgage partition was effected and defendant No. 4 got his separate one-quarter share; that it has been recently held, that is, in March 1908, that the mortgage does not bind the 4th defendant.
4. Under Section 35 of Act II of 1864 any sum paid by a bona fide mortgagee is a charge on the land and further constitutes a debt from the defaulter. The question is ' whether the plaintiff can recover anything from the 4th defendant. I am clearly of opinion that the plaintiff cannot re-cover. The plaintiff is himself the defaulter,' within the meaning of Act II of 1864.
5. It was owing to his opposition and not through any fault of the 4th defendant that transfer of registry was not effected. He contested the suit brought by the 4th defendant with the view of securing such transfer and it was while he was acting in contempt of the decree passed in that suit that he made the payment for which he now seeks to make the 4th defendant liable.
6. On the facts set forth it would, in my opinion, be clearly inequitable to grant the plaintiff a decree against the 4th defendant. I think it would also be illegal.
7. Assuming that the plaintiff be regarded as mortgagee and not defaulter, it is only if the 4th defendant is held to be a defaulter within the meaning of Act II of 1864, that the plaintiff can recover the money as a debt.
8. The authority for the view that the real owner is also a 'defaulter' within the meaning of the Revenue Recovery Act is Srinivasa Thalhachar v. Rama Ayyan 11 M. 152.
9. That decision was one by Muthusawmi Aiyar and Best, JJ. The question was not then discussed but an earlier decision was accepted as authority. The earlier decision was Seshagiri v. Pichu 11 M. 452 decided by Kernan and Muthusawmi Aiyar, JJ. A reference to this earlier decision shows that, though the two Judges agreed as to the final decision to be arrived at in that case, they held in fact diametrically opposite views on the question now in issue. Kernan, J., explicitly stated that the ' defaulter' was the tenant to Government and that 4th defendant (in that case), the real owner, is not a defaulter.'
10. It was Muthusawmi Aiyar, J. alone who held that the real owner was also a defaulter' within the meaning of the Act.
11. There is, in my opinion, nothing in Act II of 1864 to justify this view, and a different and, I think, more correct pronouncement was recently made by Subrahmanya Aiyar, J. in Boja Sellappa Reddi v. Vridachala Reddi 30 M. 35 : 16 M.L.J. 596 : 1 M.L.T. 323. At page 38 the learned Judge makes the following observations: Where land is assessed to revenue the owner thereof cannot, by virtue of his ownership alone, be held as compellable to pay the revenue. The right of the Government to proceed for the recovery of revenue is regulated by the Revenue Recovery Act. The property of the land-holder, that is, the registered holder, as well as the land on which the arrear is due may be seized, and sold, and such holder may also be arrested and confined. But as against an owner of land who is not the registered holder, the same remedies are not available and neither his property, other than the land in regard to which the arrear accrued, nor his person, can be proceeded against. No doubt if the land liable for the revenue is sold in due course of legal process the unregistered owner's right to the land would be lost. But that shews nothing more than that it would be to his interest to pay up the arrear of revenue. Consequently, such arrears cannot be said to be what the owner is bound by law to pay within the meaning of Section 69 of the Indian Contract Act.'
12. From this more recent exposition of the law it is clear that the real owner cannot be a defaulter' for he is not bound by law to pay at all and he cannot be made personally liable under Act II of 1864.
13. Now Section 5 of Act II of 1864 expressly makes the defaulter personally liable to Government and several subsequent sections declare how the liability may be enforced. I can scarcely regard that interpretation of a statute as satisfactory which postulates, the existence of a second class of defaulters' to whom several of the most important sections of the Act cannot be applied.
14. On the grounds of policy also it is clear that the framers of Act II of 1864 did not intend that the real owner should be considered a defaulter.'
15. The maintenance of correct registers by the Collector is essential for the proper collection of land revenue with a minimum of trouble to all concerned. To ensure this result it is necessary that a transfer of real ownership should be promptly followed by a transfer of pattah. The view that the word ' defaulter ' refers to the registered landholder and to him alone is calculated to encourage such prompt transfer of registry. The view adopted in Seshagiri v. Pichu 11 M. 452 has the opposite effect. If the registered owner and the real owner are equally defaulters and equally liable a transfer of registry becomes almost superfluous and a waste of time.
16. The present case affords an illustration of the evils resulting from the decision in Seshagiri v. Pichu 11 M. 452. If the plaintiff is regarded as the defaulter and the 4th defendant as merely one having an interest in the land, the 4th defendant is entitled to recover from the plaintiff the whole sum he paid to save the land from attachment. If the plaintiff had known this, he would have insisted on a prompt transfer of registry instead of opposing the 4th defendant's application for transfer and forcing him to file a suit to obtain it. In my view, the plaintiff is the only defaulter and he cannot excuse himself from liability on. the plea that he is also a mortgagee.
17. In my opinion, the decree of the Sub-ordinate Judge should be modified by exonerating the 4th defendant, and the petition should be allowed with costs throughout.
18. Under Section 575, Civil Procedure Code, the revision peittion is dismissed with costs.