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Rao Sahib Sriman Mudumbi Venkata Ranga Anaharachariar Vs. Sri Manyam Kanakayya Zamindar Garu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1948Mad383; (1948)1MLJ251
AppellantRao Sahib Sriman Mudumbi Venkata Ranga Anaharachariar
RespondentSri Manyam Kanakayya Zamindar Garu
Cases ReferredMoses v. Macforlan
Excerpt:
.....a suit by the latter for its recovery whether it be clled one for money had and received or one for compensation or one to enforce the obligation' declared by section 72 of the contract act is, in my opinion, one for damages under section 213. 8. strong reliance was placed on behalf of the appelant on the decision ion municipal council, dindigul v. , the action for money had and received) implies by the enlish common law,'as they were of opinion that in ceylon an action for money had and received might well be extended even to cover cases but out of a fiduciary position as in the case before them where the broiers having received the cheques with knowledge of the breach of duty ofh the manager were under a 'transmtted fiduciary obligation to account' to the company......suit by the company against the brokers for recovery of the amount of the cheques was a suit 'for money received to the use of the plantiff' within the mianing of section 8 of the limitation ordinance (xii of 1871) of ceylon and was within time as to the cheques received within 3 years prior to the suit. it was contented for the brokers that an action for money had and received was founded on implied or imputed contract, that the company could not sustain such an action without waiving the fraud of the manager and ratifying the issue of the cheques, that such ratification woukd necessarily involve an affirmance also of the direction by the manager to the brokers to pay the amount over to the owner of the shares bought and that the brokers who had carried out such direction could not be.....
Judgment:

Patanjali Sastri, J.

1. This second appeal and the connected civil revision petition raise a question of jurisdiction.

2. The appellant who is the Petitioner in the Revision Petition is a ryot holding lands in certain villages of which the respondent is the land-holder. Disputes arose regarding the rents payable in respect of the lands and the respondent tendered certain pattas for fasils 1350 and 1351 which the appellant refused to accept as not being valid and proper. Thereupon the respondent issued notices of demand for payment of the arrears of rent which according to him were due for those faslis, and the appellant, with a view to avoid a distraint, paid the amounts claimed under protest intimating at the same time his intention to recover the sums paid as money illegally collected from him. He accordingly brought the two suits O.S. No. 24 of 1943 in the Court of the Special Assistant Agent, Kovvur on the Civil Side and O.S. No. 261 of 1943 in the Court of the District Munsiff, Rajahmundry, out of which the second appeal and the Civil Revision Petition respectively arise, for recovery of those amounts ' as money had and received by the defendant for the plaintiff's benefit.' The respondent raised a preliminary objection that the suits being, in their true character, suits ' for damges ' falling under Section 213(1) of the Madras Estates Land Act, 1908, as subsequently amended, were excluded from the jurisdiction of the Civil Court by Section 189 of the Act. This objection prevailed and the plaint in each case was returned to be presented to the proper-Court. After unsuccessful appeals to the District Court of West Godavari in the one case and to the Sub-Court, Rajahmundry, in the other, the appellant has preferred the second appeal and the Civil Revision Petition.

3. The cases were heard in the first instance by Rajamannar, J., who considered that the decisions of Pandalai, J., in Ramji Das v. Nainar Rowthan : AIR1931Mad743 and Rajah of Ramnad v. Ramanatha : AIR1931Mad609 which the Courts below had followed and which directly cover the point raised, required reconsideration in the light of certain later rulings of this Court. The learned Judge accordingly directed the cases to be posted before a Division Bench.

4. At the hearing before us each side raised a new contention which if accepted would make it unnecessary to reconsider the decisions of Pandalai, J., referred to-above. Mr. Appa Rao on behalf of the respondent contended that apart from the applicability or otherwise of Section 213 to the case, the suits must, according to the allegations in the plaint, be regarded as suits for recovery of' excess payment ' falling under Section 136 of the Act and as such being triable by the collector they are excluded by Section 189 from the jurisdiction of the Civil Courts. Our attention was called to the fact that the heading of the chapter in which Sections 135 and 136 are placed was altered by the Amending Act of 1934 from ' Illegal Cesses ' into ' Recovery of Excess Payment ', and it was suggested that the alteration had the effect of enlarging the scope of Section 136 so as to include suits for recovery of rents collected in excess of what was lawfully payable. Though the appellant has sued for the recovery of the entire amount collected from him, the suits, it was; said, should be considered as suits for recovery of excess rent collected from him, as his case was that no rent was payable by him in the circumstances. We are unable to accept this contention. Section 135 and Section 136 should be read together. Section 135 prohibits the taking, receiving or exacting from the ryots ' under any name or under any pretence anything in addition to the rent law fully payable' and declares all stipulations and reservations for such ' additional payment' to be void, and Section 136 provides for the recovery by the ryot, by suits before the Collector of ' the amount or value of what has been so taken, received or exacted,' :t/:rjr with a penalty in the case of exaction. These provisions are clearly designed to put an end to unauthorised collections by land-holders of' additional payment' in cash or in kind which are distinct from and form no part of the rent or the consideration for the use or occupation of the land. The provision for the imposition of a penalty in cases of exaction of such payments also supports the view, for it cannot be supposed that the mere collection of a larger sum than what is found to be really due in a case of dispute as to the amount of rent was intended to be penalised. We are therefore of opinion that Section 136 does not cover excessive collections of rent and that the present suits cannot be regarded as suits falling under that section.

5. On the other hand Mr. Krishnaswami Aiyangar for the Appellant contended that in asmuch as the appellant paid the amounts claimed as arrears under protest and thus averted an actual distraint of his property, he cannot be said to be a person aggrieved ' by any proceedings taken under colour of this Act,' and the suits do not therefore fall under Section 213 so as to be excluded from the juris-diction of the Civil Courts. We see no force in this contention. Section 78 requires that ' before or at the time when a distraint is made ' the landholder or his duly authorised agent shall serve on the defaulter in the prescribed time and manner a written demand setting forth the particulars specified in the section together with an account exhibiting the grounds on which the demand is made;, and Section 79(1) which provides for actual distraint says that, ' unless the demand is immediately satisfied ' the distrainer may distrain property to the amount of the arrear with interest and costs of the distress and ' shall forthwith prepare a list or description of the said property' and 'without delay' serve it on the defaulter together with a copy of the written demand. These provisions show that the statutory demand under Section 78 is the first essential step in the process of dis-traint, to be followed 'forthwith' where such demand is not ' immediately satisfied ' by the further steps indicated leading to the actual distraint and sale of the property. It is admitted in the plaint that the appellant was served with ' demand notices ' for payment of the arrears claimed, and though these notices have not been exhibited, it was not seriously disputed that these were sent in accord-ance with Section 78. The term ' proceeding ' is not restricted in its connotation to steps in litigation but is wide enough to include any step taken in a course of action such as distraint of property. We are therefore of opinion that the ' illegal demand notices ' alleged to have been issued by the respondent followed by the receipt of the amounts paid by the appellant under protest were ' proceedings taken under colour of this Act.' The appellant being admittedly a person aggrieved by the action of the respondent the present suits brought by him would come within Section 213(1) unless they are excluded from its scope by reason of such suits being regarded under the general law as suits for money had and received. This brings us to the main question debated before us which turns on the true interpretation of Section 213(1) read with Section 189(1).

6. Section 213(1) runs thus

Any person deeming himself aggrieved (a) by any proceedings taken under colour of this Act, or (h) by neglect or breach of any of its provisions shall be at liberty to seek redress by filing suits for damages before the Collector.

7. It will be seen that this provision confers a right to obtain pecuniary redress for certain specified grievances, and such redress is to be had ' by filing a suit for damages before the Collector.' This is a statutory remedy designed to secure speedy settlement of pecuniary claims in respect of such grievances before Revenue Officers who, in the view of the Legislature, are more qualified to deal with them than ordinary Civil Courts whose jurisdiction is accordingly excluded in regard to those matters. We have already seen that the appellant's grievance comes within the purview of the section and he seeks reparation in money for the loss caused to hint by the respondent. It would be strange having regard to the object underlying Section 213 and indeed to the scheme and policy of the whole Act, if such a claim were to be excluded from its purview merely because under the general law the remedy for such a cause of action would be a suit for money had and received, a form of action which has been evolved by a process of gradual extension to cover a wide range of pecuniary claims. We are in agreement with the observation of Pandalai, J., in Ramji Das Aiyar v. Nainar Rowthan : AIR1931Mad743

Where money is by abuse of the process provided by the Estates Land Act unlawfully collected as rent by a landlord from a tenant a suit by the latter for its recovery whether it be clled one for money had and received or one for compensation or one to enforce the obligation' declared by Section 72 of the Contract Act is, in my opinion, one for damages under Section 213.

8. Strong reliance was placed on behalf of the appelant on the decision ion municipal Council, Dindigul v. Bombay Co., Ltd. (1928) 56 M.L.J. 525 : I.L.R. 52 Mad. 207 where it was held that a suit by a company for recovery of tax illegally levied by a municipality was an action for money had and received and not a suit for damages or compensation within the meaning of Section 350 of the Madras District Municipalities Act (V of 1920). Couttes-Trotter C.J., was prepared to concede that if an action for money had and received sounds either in tort or implied concede it would be a suit for damaged. But the learned Jundege was of opinion that the Courts in India are not compelled to regard a suit of that nature as condined within the limits of a suit for money had and received as known to the English common law. he referred to the decision of the privy Council in a case from Ceylon, John v. Dodwell & Company (1918) A.C. 253 and observed:

I take it to mena this-that in Courts such as those in Ceylon and those of British India, an action for money had and received may be treated, though the English Common Law cannot treat it, as an action founded on an equity binding on the conscience of the recipient of the money which is shown not to be his. If that be right if follows that the remedy being an equitable one is enforced either a suit for the damages or Compensation.

9. Madhvan Nair, J., Also referred to the same decision as supporting the conclusion that an action for money had and received, 'being essentially an equitable action,' cannot be regarded as a suit for 'damages or compensation.' The decision was referred to with approval in Panchayat Board Tiuvottiyur v. Western India Matches : AIR1939Mad421 which arose under Section 225 of the Local Boards Act (XIV of 1920).

10. In John v. Dodwell & company (1918) A.C. 253 the manager of the respondent company who had authority to draw cheques on their banking account bought shares on his own behalf through the appellcant brokers and paid the letter fraudulently by cheques drawn on the company's account. The brokers recieved the amount of the cheques without fraud but with knowlidge that the manager was without apparent authority drawing on the company's funds. It was held that the suit by the company against the brokers for recovery of the amount of the cheques was a suit 'for money received to the use of the plantiff' within the mianing of Section 8 of the Limitation Ordinance (XII of 1871) of Ceylon and was within time as to the cheques received within 3 years prior to the suit. It was contented for the brokers that an action for money had and received was founded on implied or imputed contract, that the company could not sustain such an action without waiving the fraud of the manager and ratifying the issue of the cheques, that such ratification woukd necessarily involve an affirmance also of the direction by the manager to the brokers to pay the amount over to the owner of the shares bought and that the brokers who had carried out such direction could not be made liable. Their Lordships, however, thought it unnecessary to comsider 'what is the true view of the scope of the ratification which this action (i.e., the action for money had and received) implies by the Enlish Common Law,' as they were of opinion that in Ceylon an action for money had and received might well be extended even to cover cases but out of a fiduciary position as in the case before them where the broiers having received the cheques with knowledge of the breach of duty ofh the manager were under a 'transmtted fiduciary obligation to account' to the company. This would seem to explain the reference to 'trust funds' which Coutts Trotter, C.J., sid he did not 'quite understand.' If Ex concessi where an action for money had and received is founded on obligaations aresing quasi ex contractu, it could be regarded as a suit for damages, it is difficult to see why the fact that in India as in Ceylon, such an action could also be founded on those arising out of a fiduciary position should excludeit from the category of a suit for damages. There was no obligation, and we need not pause to consider whether such an action when founded on a fiducary onligation can be regarded as a suit for damages. The leaened Judges stressed the ' equitable ' character of the remedy but it is equitable only in the broad sense explained by Lord Mansfield in Moses v. Macforlan (1760) 2 Burr. 1005 namely, ' founded on the equity of the Plaintiff's case.' It is not an equitable action in the sense of seeking relief which Courts of Equity in England alone used to grant such as injunction, specific performance, etc. In India, where, as the learned Judges themselves pointed out, the same Courts exercise jurisdiction over legal and equitable remedies, the 'equitable' character (in the wider sense of the expression) of the obligation on which an action for money had and received is founded seems to us to be hardly relevant in considering whether such an action can be regarded a ' suit for damages.'

11. However, that may be, those decisions do not, in our opinion, govern the present case which turns on the true construction of a totally different enactment. The question we have here to decide is whether having regard to the general scheme and policy of the Madras Estates Land Act and, in particular, to the object of Section 213 a suit by a ryot for recovering sums unlawfully collected from him by the landholder by abuse of the process provided by the Act falls under that section. We think it does for the reasons we have already indicated.

12. Furthermore, it is worthy of note that the bar of the Civil Court's jurisdiction under Section 189(1) which provides that ' no Civil Court in the exercise of its original jurisdiction shall take cognizance of any dispute or matter in respect of which such suit might be brought ' extends not only to suits of the nature specified in part A of the schedule which includes a suit under Section 213 but to any dispute or matter in respect of which such suit might be brought. On the allegations in the plaint a suit for reparation in money for the wrongful act of the respondent landholder might undoubtedly be brought under Section 213. If so, a suit for the same relief and arising out of the same dispute but framed as one for money had and received must fall within the absolute prohibition contained in Section 189(1), even if an action of the latter description cannot in strict theory be regarded as a suit for damages.

13. In the result the second appeal and the Civil Revision Petition are dismissed with costs.


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