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G. Narayanaswami Nadu Garu Vs. Sree Rajah Vellanki Sreenivasa Jaganna Rao Bahadur Garu - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtChennai
Decided On
Judge
Reported in5Ind.Cas.318
AppellantG. Narayanaswami Nadu Garu
RespondentSree Rajah Vellanki Sreenivasa Jaganna Rao Bahadur Garu
Cases ReferredAbdul Wahid Khan v. Shaluka Bibi
Excerpt:
.....liable for more. it is quite clear that he left the plaintiff to save the village by paying the peishcush and cesses while he enjoyed the rents and profits of the village. not satisfied with this payment the plaintiff filed the present suit next month, and only then did the defendant repudiate liability whilst at the same time pleading that the payment of rs. k 496, though the facts are not precisely similar, is against putting obstacles in the way of a litigant seeking to recover money paid pending litigation for the preservation of the property and properly payable by the successful party. lastly as the defendant was bound either to pay the peishcush on the village himself or to put the plaintiff in funds to pay it and the plaintiff was interested in paying it, in view of his claim..........brought by the receiver of the nidadavole estate to recover peishcush, water-cess and local board cess paid to government by the estate in respect of the defendant's village, the first suit no. 8 of 1905 for faslis 1309, 1310 and 1311 and the 2nd suit no. 31 of 1905 for faslis 1312, 1313 and 1314. it is not disputed that the plaintiff was bound to pay the peishcush and local cess on the village for faslis 1309,1310 and 1311 when the estate had not yet been separately registered in the defendant's name, but it is contended that the case as to water-cess is on a different footing. under act vii of 1865 the water-cess is charged on the land and government is entitled to levy it from the landholder both under the original act and the act as amended in 1900. exhibit d shows that government.....
Judgment:

1. In these cases, the suit village was bequeathed by the late zemindar to his two brothers-in-law, Jagannadha, the defendant's predecessor, and another. The zemindar's widows bought out the other and put Jagannadha in possession of the whole village under Exhibit C, dated the 22nd January 1869, under which Rs. 3,200 was treated as the peishcush payable on the village and Jagannadha was required to remit that sum annually together with the water-cess and road-cess to the zemindari, which remained liable to Government as there had been no separate registration of the village. Jagannadha was ousted from possession by the Rajah's surviving widow in 1886. He brought a suit and eventually recovered possession in accordance with the judgment of the Privy Council in December 1898. In March 1899 he applied for separate registry, but owing to the opposition of the zemindarini, he was obliged to file a suit, Original Suit No. 19 of 1901, for a declaration of his right to separate registry, and obtained a decree in the District Court on the 9th October 1901, which was confirmed by the High Court on the 20th July 1906. These two suits are brought by the Receiver of the Nidadavole Estate to recover peishcush, water-cess and local board cess paid to Government by the estate in respect of the defendant's village, the first Suit No. 8 of 1905 for Faslis 1309, 1310 and 1311 and the 2nd Suit No. 31 of 1905 for Faslis 1312, 1313 and 1314. It is not disputed that the plaintiff was bound to pay the peishcush and local cess on the village for Faslis 1309,1310 and 1311 when the estate had not yet been separately registered in the defendant's name, but it is contended that the case as to water-cess is on a different footing. Under Act VII of 1865 the water-cess is charged on the land and Government is entitled to levy it from the landholder both under the original Act and the Act as amended in 1900. Exhibit D shows that Government required the plaintiff to collect and pay the water-cess on the zemindari, including this village, and Exhibit XX, dated the 25th July 1899, that this arrangement was to continue unchanged, and it is not suggested that there has been any subsequent change. The plaintiff's claim to recover the water-cess, therefore, stands on the same footing as the claim to recover peishcush and local cess. We think the Subordinate Judge was wrong in reading Exhibit XX as an intimation by Government that it looked to the defendant rather than to the receiver for payment of the water-cess. Exhibit XX simply says the existing arrangement is to continue pending the orders of the Board, and admittedly Government collected the water-cess for all these Faslis from the plaintiff and not from the defendant.

2. As to the amount of peishcush recoverable from the defendant, Jagannadha, who was in possession from 1869 to 1886 in accordance with Exhibit C, paid Rs. 3,200 which has been held to have been fixed provisionally pending separate registry of the village. As, after the defendant had been put in possession in 1899, the plaintiff wrongfully resisted separate registration, the Subordinate Judge has not awarded Rs. 3,200 a Fasli but only Rs. 2,045, the peishcush for the village as finally apportioned. We agree with the Subordinate Judge and think that in the circumstances the plaintiff is only entitled to recover the peishcush which was actually found payable by the village. The Subordinate Judge, however, has deducted Rs. 3,239-3-7 from the peishcush for these three Faslis being the amount by which the defendant's collections for these Faslis fell short of the full kist, on the ground that the shortage was due to the action of the plaintiff in wrongly resisting separate registration. It is explained for the defendant that in accordance with certain decisions of this Court he was not entitled to take proceedings under the Rent Recovery Act until he was separately registered and that the shortage was due to this cause. Various objections are taken by the appellant. It is denied that the shortage was due to this cause, and it is pointed out that from 1869 to 1886 Jagannadha was able to collect the kist without being registered proprietor. It is also said that some of the arrears for these Faslis have been collected after suit. As for the decisions, it is pointed out that there were other decisions of this Court the other way and that these latter decisions have now prevailed. It is we think unnecessary to go into these contentions because the defendant's claim on this head fails on a larger ground. He recovered possession of the village under the judgment of the Privy Council, Exhibit I. Wanting separate registration as well he was obliged to apply for it under Act I of 1876. Under that Act unless all parties to the alienation concur, the claimant is driven to a suit. There is no provision in the Act that any party wrongly withholding his assent is to be liable for any loss which the claimant may incur in consequence of his refusal to consent. The result of his refusal is that he is made one of the defendants in the suit, and if unsuccessful has to pay the plaintiff's costs, as happened in the present case. The plaintiff was fully entitled if so advised to oppose the defendant's claim to separate registration at the risk, of course, of having to pay costs if he failed in his grounds of opposition, and we have not been referred to any principle or authority under which he can be made liable for more. The allowance of Rs. 3,239-3-7 made to the defendant on this head for Faslis 1309, 1310 and 1311 must be disallowed. With regard to issue No. 5 there appears to be some confusion in the Subordinate Judge's judgment as regards a sum of Rs. 190-1-8 paid by the defendant in August 1901 under Exhibit J for local cess due for Fasti 1308. The Subordinate Judge finds that that amount was payable by the defendant for cess in that Fasli, but has apparently overlooked the fact that this suit does not relate to Fasli 1308 but to Faslis 1309, 1310 and 1311. Consequently the defendant has wrongly been credited with this sum in the present suit, and the credit must be disallowed.

3. The Subordinate Judge has also credited the defendant in this suit with a sum of Rs. 5,138-12-7 paid under Exhibit XXIII on the 11th August 1905, three years after the institution of this suit, but, as will appear, this sum cannot be considered as having been paid in respect of these Faslis, and must be credited in the second suit.

3. The next suit filed on the 11th September 1905 is to recover peishcush, water-cess and local-cess for Faslis 1312, 1313 and 1314. The defendant denied liability and pleaded that in any case he was entitled to credit in the suit for the sum of Rs. 5,138-12-7paid by him to the plaintiff on the 11th August 1905 less than a month before the institution of the suit. The Subordinate Judge has found that the plaintiff is not entitled to recover anything in this suit and has given the defendant credit for this sum in the previous suit on the ground that the village was separately registered on the 17th January 1903 in his name, and that the plaintiff is not entitled to recover any payments made by him subsequently to that date in respect of the plaint village. The fact that the defendant was held entitled to separate registration by the High Court on appeal between the settlement of issues and the hearing of this suit was not enough to decide the 4th issue, 'Whether the defendant must make any payments to the plaintiff for the suit Faslis? If so, what is the sum payable?' We think the issue raised and was intended to raise the question whether in the circumstances of the case the defendant was bound to repay the plaintiff the sums which the plaintiff had paid Government in respect of the village or rather the balance, for it is alleged in the plaint and not denied in the written statement that before suit the defendant had paid the plaintiff over Rs. 5,000 in respect of these Faslis, and obviously in repayment of what the plaintiff had paid Government. Now looking at the conduct of the parties, we think it raises the inference that the plaintiff went on paying the peishcush to Government by consent of all parties pending the decision of his appeal as to whether it was payable by the defendant direct or by the plaintiff out of a sum of Rs. 3,200 paid him by the defendant, and that as will be seen later in law it was paid at the defendant's request. At the time the apportionment was commenced in March 1903. Fasli, 1312 was nearly over and the plaintiff must have paid most of the peishcush for the year. It is not suggested that the defendant made any effort to ascertain what balance was due by him or gave any notice to the Revenue authorities of his desire to pay direct to them or that they made any demand on him for these Faslis or reduced their demand on the plaintiff. It is quite clear that he left the plaintiff to save the village by paying the peishcush and cesses while he enjoyed the rents and profits of the village. It is also clear that he acquiesced in the action of the plaintiff which was so greatly to his advantage and admitted his liability to repay the plaintiff whatever might prove to be due after the question of separate registry and of the amount of peishcush payable on the village which was also under appeal had been finally settled. It is alleged in the plaint in this suit that the plaintiff several times asked the defendant for the amounts sued for, and this is not denied in the written statement, nor is it anywhere suggested that the defendant ever denied his liability to repay until after the filing of the suit. In June, July 1904 when the first suit as regards Faslis 1309, 1310 and 1311 was pending, the defendant, who had filed his written statement in November 1902, tendered Rs. 2,000 to the plaintiff, see Exhibits XXI and XXII. There is nothing to suggest that this tender was in reduction of the claim for Faslis 1309, 1310 and 1311 as to which a suit was pending. If so, it would have been paid into Court. In Exhibit XXI, Rs. 2,000 are spoken of as collections. The plaintiff insisted that this should be paid without prejudice and nothing more was done then; but in August 1905 after another Fasli had elapsed a payment of Rs. 5,138-12-7 was made through one Basivi Reddi who appears to have been consulted by the defendant at the suggestion of his brother-in-law, the minor Rajah of Pittapur, no doubt with a view of avoiding further litigation. The letter which he brought from the defendant's agent, Exhibit XXIII, says he would pay the peishcush etc., payable on the village to the plaintiff on condition of settling accounts subject to Court decisions. These decisions did not mean future suits which it was the object to avoid but the pending litigation as to whether the plaintiff was to have separate registration or to pay Rs. 3,200 to the plaintiff, and if the former, what was to be the amount of the separate peishcush. This letter bears an endorsement of payment by the plaintiff's accountant, stating that the Rs. 5,138-12-7 had been paid for Fasli 1312, and the defendant has not produced the receipt given to Basivi Reddi to show that this is incorrect. Not satisfied with this payment the plaintiff filed the present suit next month, and only then did the defendant repudiate liability whilst at the same time pleading that the payment of Rs. 5,138 must go in reduction of the claim. Less than this would, be sufficient to enable the plaintiff to maintain this suit as one for money paid by the plaintiff for the defendant' at his request. 'A request will generally be implied where the defendant has notice of the payment being made for him, and does not dissent,' Bullen and Leake's Precedents of Pleading, 3rd edition, page 42, citing Paynter v. Williams 1 C. & M. 810 and Alexander v. Vane 1 M. & W. 511. The learned editors of the 3th edition at page 254 say 'sometimes' instead of 'generally,' but the alteration does not affect the present case. In Falcke v. Scottish Imperial Insurance Co. 56 L.J. Ch. 707. 'The inference of an understanding' between the parties--which you may translate into other language by calling it an implied contract--is an inference which will unhesitatingly be drawn in cases where the circumstances plainly lead to the conclusion that the owner of the saved property knew that the other party was laying out his money in the expectation of being repaid.' The law is certainly no narrower in India, Nobin Krishna Bose v. Mon Mohun Bose 7 C. k 573 Damodara Mudaliar v. Secretary of State for India 18 M.k 88, Jarao Kumari v. Basanta Kumar Roy 32 C.d 374, cases under Section 70 of the Indian Contract Act. In the present case it must be borne in mind that the amounts sued for were payable out of the defendant's pocket in any event and that the only question was whether he was to pay the apportioned peishcush to Government direct, or was to pay the plaintiff a larger sum out of which the latter was to pay the peishcush.

4. Further the plaintiff was undoubtedly interested in the payment of peishcush on the village as he was claiming Rs. 3,200 annually out of the village subject to the payment of peishcush by him, which, as it proved, would have meant a profit of Rs. 1,000 a year. The decision of the Privy Council in Abdul Wahid Khan v. Shaluka Bibi 21 C.k 496, though the facts are not precisely similar, is against putting obstacles in the way of a litigant seeking to recover money paid pending litigation for the preservation of the property and properly payable by the successful party. Lastly as the defendant was bound either to pay the peishcush on the village himself or to put the plaintiff in funds to pay it and the plaintiff was interested in paying it, in view of his claim in the pending litigation, it may well be argued that the case comes within Section 69 of the Indian Contract Act as well. In this case also the water and local cesses stand on the same footing as the peishcush. In the result the decrees of the lower Court must be reversed and there must be judgment for the plaintiff in both suits in accordance with this judgment with interest at 6 per cent, from the date of plaint and costs in both suits. Interest will be allowed at 6 per cent.


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