1. These second appeals arise from two suits brought by the present Sikkudayar Swami of Kanchi Kamakoti Mutt of Kurabakonam against the defendants, who are the Shrotriemdars of the 3 plaint Shrotriem villages in the Chingleput District, for payment of Sikkudayar Merai alleged to be due to him from them for 12 years from Fasli 1309.
2. Plaintiff's case, as finally put forward by him in Court, was that the Merai, which was a share in the crop, was to be deducted and given to him from the outturn of the produce of the lands in the Shrotriem villages in Chingleput District at a fixed rate after deducting 1/5th for common expenses and before the division of the crop between the Shrotriemdar and the Kudivaramdar. It was stated that the Sikkudayar Swami obtained the right to this Merai as an Inam from the Hindu Chola Rajas, that the British Government recognised it and for some time collected and paid it to the Swami themselves, that at time of the settlement and the grant of the Sanads to the Shrotriemdars they deducted this Merai in fixing the Peshcush and directed the Shrotriemdars to take it and pay it over to the Swami, and that payments had been made accordingly for many years and that in cases of default, payments had been enforced by decrees obtained against some of the Shrotriemdars. Plaintiff also suggested that the Merai was really a part of the Government revenue which Was granted to the Swami for the upkeep of the Mutt.
3. The defendants denied the plaintiff's title and their liability to collect and pay the Merai to the Swami, and pleaded that they had never made any such payments before and that even if they had paid, such payments were merely voluntary. It is not necessary to refer to their other pleas, at present.
4. With reference to the above pleas, two issues were framed, viz.--Issues Nos. 2 and 3, the former as to whether the Merai was part of the Government revenue and the latter as to whether the defendants were legally bound to collect and pay the Merai to the plaintiff. We observe that the words 'if so' in the 3rd issue is a mistake; for the question raised in it is, on the pleadings, independent of the question raised in the 2nd issue; but as the lower Courts have treated it so, it is not necessary to have the issue amended now. In considering this issue it should be borne in mind that, according to the plaintiff's case, this Merai, which is in the nature of a rent charge, was payable one-half from the Shrotriemdar's share and the other half from the Kudivaramdar's share, as the whole was payable from the produce before division between them. The alleged obligation of the Shrotriemdar to collect has, therefore, reference only to the Kudivaramdar's share; the Shrotriemdar's share will be in his own hands and he will only have to pay it over. Separate issues were not, however, framed; and it was not necessary to do so as both the obligations were based upon the same evidence and treated as falling under the same issue.
5. Both the lower Courts have found on the 2nd issue that the Merai was not shown to be a portion of the Government revenue, and we accept that finding. But on the 3rd issue, as to the defendants' obligation, the lower Courts have differed. The District Munsif found that there was an express or implied contract between the Government and the defendants' ancestors that the Shrotriemdar should collect the plaint Merai and pay it over to the Swami and that he was entitled to take advantage of it. Apparently the District Munsif treated this contract as a covenant attached to the grant. He decreed the suits. But on appeal the learned District Judge held that there was no evidence to support such a conclusion and that there was no legally enforceable claim proved by the plaintiff and dismissed the suits.
6. Though the Judge's finding is one of fact, Mr. T.R. Ramachandra Aiyar for the appellant argues that it cannot be accepted as it is based upon a misconstruction of certain documents and a mistake of law as to the admissibility of evidence. In considering this argument we may observe that though the District Judge purports to begin the discussion of Issue No. 3 in paragraph 10 of his judgment, the discussion in paragraph 9 is more relevant to that issue than to Issue No. 2.
7. The most important point made by the learned Vakil is as regards Exhibits J, G and H. The District Judge says that there is no admission in them that the plaint Mutt is entitled to the Merai or that the defendants are liable to collect it and pay it over to the plaintiff. We are unable to agree with him, as we think there is a clear admission on both the points in the plaint Exhibit G, see paragraph 2 and the first two sentences of paragraph 6. The weight of those admissions as evidence is not affected, as apparently the District Judge thinks, by the further statement that by a special arrangement the defendants' predecessors were allowed to keep the Merai after collecting it. Such a special arrangement is not now pleaded. The statements in Exhibits J and H are in accordance with the statement in Exhibit G. It need hardly be pointed out that an admission by a party is of considerable weight as evidence against him and may, if unexplained, be even decisive: see Chandra Kunwar v. Chaudhri Narpat Singh 29 A.P 181 ; 9 Bom. L.R. 267 ; 2 M.L.T. 103 ; 17 M. L.J. 103 ; 5 C.L.J. 115 ; 11 C.W.N 323 ; 4 A.L.J. 102 We cannot, therefore, accept the District Judge's finding and must call for a revised finding on the 3rd issue.
8. In doing so we may point out that the way in which the learned District Judge has dealt with Exhibits A, B and C series, and D is not satisfactory. It is not clear why the evidentiary value of Exhibit D should be nullified, as the Judge thinks, because it is an executive and not a judicial order. The District Judge should consider whether, taken with the evidence hat the order was carried out, Exhibit D should not be given weight. He should also consider if Exhibits B and C series, which range from 1817 to 1893, do not afford good evidence of the plaint claim as, though they refer to other villages, the claim regarding them was made on the same basis as that now made against the plaint villages. Exhibit A is of importance to show that the plaint Merai was recognised by the Government so early as 1801 ; and Exhibits E and F series, though recent, show the position of the Government now in this matter of Sikkudayar Merai. We think Exhibits L-1 and M-1 should also be considered with reference to this issue. We need not refer further to particular documents or to the other evidence, as the learned District Judge will submit his fresh finding on the whole of the evidence in the case.
9. We may in conclusion observe that though according to Byathamma v. Avulla 15 M.K 19 ; 8 Ind. Dec. (N.S.) 363 the recital in Exhibit B may be admitted under Section 35 of the Evidence Act, as proving that the Collector made the statement that he is stated to have made, if the fact that he made such a statement is a relevant fact, it does not appear that it is a relevant fact in the present case. To be a relevant fact the statement should be admissible as evidence of what is stated in it. It is suggested that it would be admissible under Section 48 of the Evidence Act ; but in the present case we are not dealing with a 'general right' but a specific one claimed by a particular individual, the Swami of the Mutt. The statement itself has no reference to any general custom or right but to a particular grant by the Government. Section 48 does not, therefore, seem to apply. It is not claimed that the statement will be admissible under any other section. We think, therefore, the District Judge was right in excluding that evidence.
10. The lerned District Judge will submit his revised finding on the evidence on record in six weeks. The time for filing objections is seven days.
11. In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted the following
12. The High Court has called for a revised finding on the third issue, which is 'Whether the defendants as Shrotriemdars are legally bound to collect and pay the plaint Merai to the plaintiff' on the evidence already on record.
13. The defendants in these suits admit that the plaintiff is entitled to the plaint Merai but deny their liability to collect it from the Kudivaramdars and pay it over to him. They concede that if they collect it they are bound to pay it over to the plaint Mutt. On behalf of the plaintiff it is urged that the defendants are liable to collect and pay over the plaint Merai to him.
14. The first set of documents relied upon by the plaintiff is Exhibit A series, extracts from the dowle accounts of the plaint villages, which show that the plaint Merai was in force in these villages in 1801, that the Government recognised it and that it was a deduction from the gross produce before its division between the Melvaramdar and the Kudivaramdar. It is argued on behalf of the plaintiff that they show that the defendants are liable to collect the Merai which is a common burden as, after the Permanent Settlement, they stand in the shoes of the Government. On behalf of the defendants it is urged that these accounts themselves do not prove any liability on their part to collect the Merai
15. The next document relied upon is Exhibit D, dated 2nd May 1816, a copy of the order of the Collector of Chingleput District to Shrotriemdars to pay up the arrears of the plaint Merai without delay and threatening them with legal proceedings in case of default. This order was relied upon and given effect to in various suits filed against Shrotriemdars, Zemindars, Ijaradars, etc., to recover the plaint Merai (vide Exhibit B series). It is contended on behalf of the plaintiff that it shows that after the Permanent Settlement the Government gave instructions to their successors-in title, namely, Shrotriemdars, Zemindars, etc., to collect and pay the plaint Merai to the plaint Mutt and that this evidence coupled with that furnished by Exhibit A series proves the defendants' liability to collect and pay the plaint Merai to the plaintiff. No doubt, as urged on behalf of the defendants the original of Exhibit D was not a general order to collect and pay the plaint Merai, the complaint to the Collector having been only that the Shrotriemdars and others concerned had not paid over the collections made by them in fall to the plaint Mutt and not that they had refused to collect the Merai and pay it over, but I think that the plaintiff's contention that Exhibit D coupled with Exhibit A series casts a liability on the defendants as Shrotriemdars to collect the plaint Merai is well founded.
16. Exhibits B and C series are judgments of Courts ranging from 1817 to 1898, in which the plaint Merai was enforced in respect of other villages. The defendants in those suits were Zemindars, Shrotriemdars, Izaradars from Government and even Paitadars. They are instances in which the plaint right was recognised and the liability of Shrotriemdars was enforced. It is pointed out on behalf of the defendants that there was not adjudication in any of these suits as regards the liability of Shrotriemdars to collect the plaint Merai inasmuch as their liability was practically admitted. Prom some of these judgments it no doubt appears that the plaint Merai had been already deducted from the gross produce but had not been paid over to the Mutt, nonetheless it must be held that they afford evidence as to the enforceability of the plaintiff's right against Shrotriemdars.
17. Exhibit E series are not of much importance for the consideration of this issue. Exhibit P and P (1), which are of recent date, show that officers of Government have recognised the plaint Merai even in recent times and have given instructions to Karnams to furnish the plaint Mutt with accounts for calculating the total of Merai due from each village. So far only it can be said that they are of any value, but on the question of the liability of the defendants they, it seems to me, throw no light.
18. The next and perhaps the most important set of documents consists of Exhibits G, H and J. The High Court have held that they contain a dear admission on the part of the defendants' predecessors-in-title both as to the plaintiffs' right to the Merai and as to the defendants' liability to collect it and pay it over to him. It is not now open to the defendants to argue that they only contain an admission of their right to collect and appropriate the plaint Merai to themselves under a special agreement. The argument advanced on their side is that they collected and appropriated the Merai as agents of the plaintiff's predecessor-in-title under a special agreement. In the remand judgment of the High Court, their Lordships observe that the special arrangement set up does not affect the weight of the admissions as evidence. No further explanation is now offered to explain the above said admissions. The effect of Exhibits J., G and H is, therefore, to furnish evidence that the defendants' predecessors were collecting the plaint Merai till 1890 for 50 or 60 years prior to it, and it is rightly argued on behalf of the plaintiff that this can only be referred to the circumstance that they are liable as Shrotriemdars to collect it. The defendants allege and have adduced evidence to show that they have not been collecting the plaint Merai for some years. It is urged on their behalf that after the decision, Exhibit II, they have not been able to collect the plaint Merai, and there is no positive evidence on behalf of the plaintiff to the contrary, but reliance is placed on plaintiff's behalf on Exhibits L (1) and M (1) as showing that even after 1800 they incorporated the plaint Merai in their Muchilikas. In paragraph 3 of Exhibits L (1) and M (1) we find the year 19...showing that they relate to years after 1900 and not prior to it. It seems to me that no inference can be drawn from them that the plaint Merai was actually collected and that they only indicate that they had an intention to collect it.
19. It is next pointed out on behalf of the plaintiff that as from the written statements of the defendants it appears that they themselves are the Mirasdars of the major portion of the lands in the plaint villages they are not entitled to plead that the plaintiff should sue the Kudivaramdars for the plaint Merai. This point does not, it seems to me, arise on the pleadings.
20. For the reasons given above, I have to arrive at a conclusion different from my original finding; the evidence furnished by Exhibits G, H and J turns the scale against the defendants and goes to show that as Shrotriemdars they are liable to collect the plaint Merai and the other documentary evidence corroborates it. I accordingly find Issue (3) in favour of the plaintiff.
21. These second appeals coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following
22. We must accept the revised finding of the District Judge on the 3rd issue. We think the evidence justifies the inference that this payment of the disputed Merai had a lawful origin and was not merely voluntary.
23. The only other point argued is that of limitation. Both lower Courts have found that there was no refusal of plaintiff's claim which would render the present suit barred under Article 131 of the Limitation Act.
24. The appeals are allowed, the decrees of the District Court are set aside and those of the District Munsif restored with costs throughout the decree of the District Court as regards costs in Appeal Suit No. 460 of 1915 and No. 461 of 1915 will, however, stand.