4. The District Judge has now returned a finding that there has been an increase in the supply of water to the Moolachikulam tank in consequence of improvements carried out by Government.
5. It is conceded that on this finding Government is entitled under Madras Act VII of 1865 (amended by Act V of 1900) to impose the water-cess levied in this case.
6. The only other question is whether it is the zamindar (the second defendant) or the tenant (plaintiff) that is bound to pay it.
7. The District Judge has decided that the zamindar is the person liable, and that, if the circumstances are such as to justify him in demanding an enhancement of rent from the tenants, he should obtain the sanction of the Collector under Section 11 of Madras Act VIII of 1865.
8. I am of opinion that the decision of the District Judge is right, and in accordance with the scheme of the Revenue Recovery Act (Madras Act II of 1864) as explained by this Court in Zamorin of Calicut v. Sitarama I.L.R. (1884) Mad. 405, Secretary of State for India v. Ashtamurthi I.L.R. (1890) Mad. 89 and the recent Full Bench Case of Subramania Chetty v. Mahalingasami Sivan I.L.R. (1910) Mad. 41, &
9. In the first of these cases Turner, C.J., and Muthusaml Ayyar, J., said 'According to Section 2 of the Act it is the proprietary right that is liable to be sold. According to Section 1 it is the person in whom such right vests that is the 'land-holder According to Section 3, it is the proprietor that is liable for the payment of she revenue. According to Section 39, it is his right and property that passes by the revenue sale.'
10. In the second case Parker, J., said 'Regulation XXVI of 1802 provides that Collectors shall keep registers of landed property paying revenue to Government and shall also enter all transfers of landed property from one proprietor to another. The regulation does not appear to contemplate the contingency of the person paying the revenue not being the proprietor... It is admitted that the jenmi is really proprietor.... He therefore is, and has a legal right to be, the landholder within the meaning of Section 1 of the Revenue Recovery Act.' In the Full Bench Case it was observed that the word 'defaulter' is not defined in the Revenue Recovery Act, but it was held that, reading that Act along with Regulation XXVI of 1802, the term 'defaulter' applied only to the pattadar registered in the Collector's register and that he remained the 'landholder' under the Act, and liable for the revenue under Section 3 even after the real ownership had been transferred to some other person by sale or otherwise.
11. In the present case, however, the tenant relies on the unreported case of Nytiappan Servai v. The Secretary of State for India Second Appeal No. 1597 of 1907 (unrepetted), see 1910 M.W.N. 322 in which it was held that a zamindari tenant in occupation is the holder of land subject to the payment; of revenue direct to Government in respect of the water-cess, and therefore a landholder who becomes a defaulter under the Act.' I was a party to that decision, but further consideration in the Full Bench Case of Vidyapurna Thirta Swami v. Ugganu Second Appeal No. 229 of 1907 (unreported), see 1910 M.W.N. 383 and in the present case has led roe to the conclusion that the decision in Nynappa Servai's case is opposed to the decision of the Full Bench in Subramanya Chetty's case above referred to and to the scheme of the Revenue Recovery Act and ought not to be followed. In Subramanya Chetty's case it was held that the term 'defaulter' 'applies only to the registered pattadar.' I do not think that the Full Bench contemplated any other person as liable to become a 'defaulter' under the Act, whether in respect of land revenue properly so called, or cesses which like land revenue are secured on the land and are recoverable as land revenue. I would therefore confirm the decree of the District Judge and dismiss the second appeals with costs two sets. The memoranda of objections are also dismissed with costs.
12. The finding is that there has been an increase in the supply of water to the Moolachikulam tank on account of the improvements made by Government and it is therefore conceded by all the parties that the water must be treated as Government water and the Government is accordingly entitled to impose water-cess.
13. The next question is who is the person bound to pay such water cess to Government: the zamindar or the ryots
14. The Judge has held that the zamindar is the person who would suffer if Government proceeded to recover the tax by attachment or sale of the land and therefore he is the person bound to pay. The appellant contends on the authority of the decision in Nynap-pen Servai v. The Secretary of State for India Second Appeal No. 1597 of 1907 (unreported); (1910) M.W.N. 322 that the tenant is bound to pay.
15. As the Judge's opinion that the zamindari itself may be sold by Government if water cess, which is revenue, is not paid seems to be in accordance with the other cases decided by this Court, it seems necessary to review them before we follow the case cited. There is no difference between water-cess and ordinary revenue under Act II of 1864. Both Regulation XXV of 1802 and Regulation XXVI of 1802 contemplate settlement of land revenue only with the proprietors of land and require transfers of land from one proprietor to another to be registered. If the registry is not transferred, the obligation of the registered proprietor continues to subsist and the land remains security for the revenue. They do not contemplate, as pointed out by Parker, J., in Secretary of State for India v. Ashtamurthi I.L.R. (1890) Mad. 89 with reference to the latter Regulation, the contingency of any person paying the revenue not being the proprietor,
16. Section (3) of Act II of 1864 imposes upon every 'landholder' the obligation to pay the revenue due on his land. If it is not paid, he becomes a defaulter and his land may be sold. 'The land, buildings upon it and its products' are the security for the land revenue (see Section 3). The context shows that the full proprietary interest in the land is meant, The purchaser succeeds to all the rights and property of the former landholder' (Section 39) i.e., to the full proprietary interest subject to all the agreements between the defaulter and his tenants (see Section 41), Reading now the definition of 'landholder' in section I which a comprises 'all persons holding under a Sanad-i-nailkiyat-i-istimrar, all other zamindars, shrotriamdars, jagirdars, inamdars, and all persons farming the land revenue under Government; all holders, of land under ryotwar settlements, or in any way subject to the payment of revenue direct to Government,' by the light thrown upon it by the Regulations and the other sections of the Act, I have little doubt that it means the 'proprietor' referred to in the Regulations and not any subordinate tenure bolder or any tenant.
17. The land is the security for the revenue. At a revenue sale the purchaser gets the full proprietary interest subject to the rights of the tenants. Naturally, therefore, the proprietor is the person, entitled to pay the revenue to prevent the land being sold and the person to whom the Government must look for payment. He is therefore the 'landholder.'
18. The decided cases bear out this view.
19. Zamorin of Calicut v. Sitarama I.L.R. (1884) Mad. 405 and Secretary of State for India v. Ashtamurthi I.L.R. (1890) Mad. 89 were oases in which the Government sold the land when the pattadar was not the owner. In the first case the sale was affirmed on the ground that the owner was estopped from putting forward his claim as he had allowed the patta to stand in the name of his tenant, and, in dismissing the suit, the High Court said: 'according to Section 2 of Act II of 1864 it is the proprietary right that is liable to be sold. According to Section 1, it is the person in whom such right vests that is the landholder. According to Section 3, it is the proprietor that is liable for the payment of the revenue. According to Section 39 it is his right and property that passes by the revenue sale.' The contention that a tenant may be a landholder, and that his interest alone may be sold is inconsistent with this judgment. This principle was enforced in the next case. There a person had taken possession of certain waste land under a cowle from Government, and had subsequently obtained a patta for it after he brought it into cultivation, and the land was sold on default made by him for arrears of revenue. The question was fully argued and in an elaborate judgment the sale was set aside. Mr. Justice Parker held that the Jenmi, the proprietor, 'is and has a legal right to be, the landholder within the meaning of Section 1 of the Revenue Recovery Act.' Shephard, J., agreed and pointed out the distinction between a tax for which the land is liable to be sold and a personal charge payable by the occupier in respect of the land. In that case though the pattadar was interested in the land and could not have been turned out by the owner without payment for the improvement which consisted in bringing the land into cultivation, the sale was set aside in its entirety, the purchaser not obtaining even the rights which the pattadar admittedly had. Once the land is assessed to revenue in the name of the proprietor, any subsequent transfer will be treated under the Ragulations of 1802 as invalid against the Government claim to realize the revenue from the registered holder by the sale of the land. In Seshagiri v. Pichu I.L.R. (1888) Mad. 452 Muthusami Ayyar, J., held that the real owner is also liable to pay the revenue while Kernan, J., held that though the transferee may be the real owner yet he is not a 'defaulter under Act II of 1864. Relying on the opinion of Muthusami Ayyar, J., it was held in Srinivasa Thatha Chariar v. Rama Ayyan I.L.R. (1894) Mad. 247 that not only registered proprietors but also real owners may be treated as defaulters within the meaning of Section 35 of Act II of 1864. In Boja Sellappa Reddy v. Vridhachala Reddy I.L.R. (1907) Mad. 35 Subramania Ayyar, J., took the opposite view, though curiously enough the cases in Seshagiri v. Pioku I.L.R. (1888) Mad. 452 and Boja Sellappa Reddy v. Vriddhachala Reddy I.L.R. (1907) Mad. 35 are not referred to in his judgment. He was of opinion that the owner cahnot by virtue of his ownership alone be compelled to pay the revenue, and he pointed out that the landholder is the registered holder, and, though the unregistered owner may lose his land if it is sold for arrears of revenue due by the registered holder, he cannot be treated as the defaulter and is not therefore a person bound to pay the revenue, though he may be interested in paying it. In this state of the authorities the question came before the Full Bench in Subramania Chetty v. Mahalingasami Sivan I.L.R. (1910) Mad. 41 and we held that the transferee of the registered holder, though the real owner of the property, is not a 'defaulter' and the reason given is that, reading Act II of 1864 with Regulation XXVI of 1802 'the term 'defaulter' applies only to the registered pattadar,' or, in other words, the 'landholder' is the registered pattadar as he alone is the defaulter under the Act.
20. In Nynappen Servai v. The Secretary of State for India Second Appeal No. 1597 of 1907 (unreported); (1910) M.W.N. 322 a different view from that laid down in the previous cases seem to have been taken. Apparently accepting the view that, where there is a registered proprietor, no other person is to be treated as 'a landholder' under the Act, the learned Judges proceeded to decide that when the revenue payable is not under a settlement, any person who may be deemed to be the holder of the land must be comprised in the term 'landholder' and therefore a tenant in occupation is a 'landholder' and 'defaulter' under the Act, with reference to the water cess which is revenue for this purpose.
21. It necessarily follows from this decision that in cases of sales for non-payment of such revenue the purchaser will get only the interest of the tenant, the 'landholder' under Section 39 of the Act.
22. It appears to me that this is opposed to the scheme of the Revenue Recovery Act and to the decisions. As I have pointed out above, the Government look to the full proprietary interest in the land for security for payment of revenue. In order to make that the security, they have to make the proprietor their debtor; for, as pointed out by Shephard, J., in Secretary of State for India v. Ashtamurthi I.L.R (1890) Mad. 89' a security presupposes an obligation and unless therefore an obligation has been imposed on the landholder, it is difficult to see how his interest in the land can be affected.' As decided therein the proprietor is the person under the Act treated as the landholder and none other can be treated as such. The fact that there is no patta cannot make another liable. It is not clear from the judgment whether, besides the tenant, the zamindar also may be treated as the 'landholder' for the purpose of recovering the same debt. The defaulter is also personally liable and it can scarcely have been intended to create two classes of defaulters.
23. I am therefore of opinion that the Judge is right in holding that the person to pay the cess or revenue is the zamindar and that the judgment in the Weekly Notes should not be followed.
24. I accordingly dismiss the appeals with costs--two sets.
25. The memoranda of objections are also dismissed with costs.