Alfred Henry Lionel Leach, C.J.
1. On the 20th March, 1887, the respondent's predecessor-in-title granted to the petitioner's predecessor-in-title a lease in perpetuity of five villages in the Sivaganga Zamindari in the Ramnad District at an annual rental of Rs. 5,000. The deed provided that the lessee should be liable for the road cess and the mahimai payable in respect of the villages. It contained the further provision that the lessee should 'deliver the account asked for as well as the tax, etc., levied from time to time by the Government.' At the time of; the execution of the document the only local tax was the road cess, but as the result of the passing of the Madras Elementary Education Act, 1920, the District Board imposed an education-tax. The respondent was compelled by the local authority to pay this tax and he filed the suit out of which this revision application arises in the Court of the Subordinate Judge-of Sivaganga to recover from the petitioner what he had paid by way of education-tax for faslis 1342, 1343 and 1344. He averred that by reason of the terms of the document the petitioner was bound to pay the tax. The Subordinate Judge held in favour of the respondent and 'granted him a decree for Rs. 250. This suit was a small cause suit and as no appeal lay the petitioner filed this application in revision. His contention is that the Subordinate Judge has misread the document. He says that it imposes no liability on him to pay the education-tax.
2. The petitioner's case is well founded. The document States what the petitioner shall pay. He has to pay the road cess and any tax levied from time to time by the Government. The education-tax is not a tax levied by the Government. It is levied by the District Board. It is true that Section 34(2) of the Madras Elementary Education Act, 1920, provides that a District Board must obtain the previous sanction of the local Government, unless it is directed by the local Government to levy the tax, but in any event the levy is by the District Board and not by the Government. The tax is levied not for the benefit of the Government, but for the purpose of elementary education in the particular District. Section 36 read with Section 34(2) provides, that the tax shall be deemed to be an addition to a tax levied under all or any of the following heads, namely, land cess, profession-tax and house-tax. But in no sense is the tax levied by the Government.
3. Mr. Narasimhachariar has asked the Court to hold that the word 'Government' should be interpreted as including the District Board. To do so would in my opinion be to distort the true meaning of the word. Moreover Section 3(21) of the General Clauses Act, 1897, says that 'Government' or 'the Government' shall include the local Government as well as the Govern ment of India. No reference is made to local authorities. There is a further answer to Mr. Narasimhachariar's argument. If one turns to the sentence which precedes the provision in the deed with regard to the levy of tax by the Government one sees that the parties used the word 'Government' in its proper sense. The lessee shall 'monthly, deliver in the taluk cutcherry the accounts relating to Avari (indigo), cotton, etc., regarding the said villages to be submitted to the Government.' These accounts have not been submitted to a local authority. No provision having been made in the document for the payment by the lessee of any local tax other than the road cess the respondent cannot in law claim to recover his payments in respect of the education-tax from the lessee by virtue of the deed, and the decree passed against the petitioner on the basis of the deed is contrary to law.
4. Mr. Narasimhachariar has asked that he be given leave to amend his plaint in order to plead the right to recover half the amount under the provisions of, Section 88 of the Madras Local Boards Act, 1920. Mr. T.M. Ramaswami Aiyar, the learned advocate for the petitioner, has no objection to the amendment being allowed provided he is allowed to plead to the amended plaint. As a matter of fact, in the grounds of appeal he raised the same contention himself as an alternative to his plea of complete non-liability. In these circumstances we will grant the respondent leave to file an amended plaint in the trial Court with liberty to the petitioner to amend his written statement should he so desire.
5. The case will be remanded to the trial Court to be dealt with according to law after amendment of the pleadings. The decree which has been passed is set aside and the petitioner is entitled to his costs in this Court. The costs in the trial Court will abide the further hearing.