S.A. No. 508 of 1929.
1. Suit for Rs. 125 (and interest, the sum alleged to have been unlawfully collected by the defendant, the Taluk Board of Sivaganga, from the plaintiff by way of profession tax. The lower Appellate Court dismissed the suit and the plaintiff appeals.
2. Defendant takes a preliminary objection that this suit being of a small cause nature, no second appeal lies.
3. I think that the objection must be upheld. The amount sued for brings the suit within the small cause category, and the decree that is sought is not a mere declaratory decree. Mr. T.M. Krishnaswami Ayyar argues for the appellant (that the decree for money cannot be obtained until the order of the Taluk Board is cleared away by way of declaration. But that is not the governing factor. A party who sues for money has usually to establish, or to clear away something, and his money decree does not become a declaratory decree because the judgment in his favour is prefaced by some eort of declaration. In Rajammal v. Narayanaswamy Naicker 29 Ind Cas.908 : 39 M. 219 : (1915) M.W.N. 376 : 28 M.L.J. 600 a defeated claimant had first to get the court's summary order set aside before he could obtain the return of his property, but nontheless it was held to be a suit of a small cause nature.
4. In Veeraraghava Ayyangar v. Vellai Mooppai 17 Ind. Cas. 704 : 23 M.L.J. 517, it is also pointed out that an incidental declaration prefatory to the return of money does not except a suit from the cognizance of a Court of Small Causes. In the present suit the decree which the first court passed is a simple money decree with no declaration. And even if there had been a declaration it would still not have been a declaratory decree within the mischief of Clause 19 of Second Schedule to Act IX of 1887, because it would not be a mere declaration to quote the term used in Rajammal v. Narayanaswamy Naicker 29 Ind Cas. 908 : 39 M. 219 : (1915) M.W.N. 376 : 28 M.L.J. 600.
A declaratory suit properly so called is a suit of the nature described in Section 42 of the Specific Relief Act'. Raghunath Makund v. Sarosh K.R. Kama 23 B. 266 at p. 270.
5. I hold that no second appeal lies.
6. However, the case has been argued on the merits. The plaintiff is a Chetti residing within the local limits of the defendant Board, and deriving his income from money transactions in Burma. It is argued on his behalf that he is not within the local area in receipt of any income from money lending. Though he may have earned such income outside the local area, its transmission to him within the area, does not amount to receiving income, because it is not receiving and not income. This is largely based upon Sunder Das v. Collector of Guzarat 77 Ind. Cas. 616 : 3 Lah. 349 : A.I.K. 1923 Lah. 14 where the curious circumstance is contemplated of a man earning money in Beluchistan and carrying it over the border into British India or himself transmitting it there. But if he receives the money from his agents there seems no necessity to go to the Oxford Dictionary to see whether he receives it, for in ordinary parlance he undoubtedly does. In such circumstances, Commissioner of Income tax Madras v. Nedungadi Bank Calicut 98 Ind. Cas. 1 : 49 M. 9l0 : 24 L.W. 685 : A.I.R. 1926 Mad. 1048 : 51 M.L.J. 403; (1926) M.W.N. 740; (F.B.) is clear authority that the money is received; and in Board of Revenue v. Ripon Press 77 Ind. Cas. 621 : 46 M. 706 : 17 L.W. 584 : A.I.R. 1923 Mad. 574 : 46 M. 708 : 44 M.L.J. 523, the governing factor is that in fact the income was not so received. In this ruling it is nowhere suggested that it is immaterial whether the money was ever received in British India or not. So too in In re Aurangabad Mill Ltd. 64 Ind. Cas. 9 : 45 B.1286 : A.I.R. 1921 Bom. 159 : 23 Bom. L.R. 570.
7. Then it is argued that if an agent in Burma receives the income of the firm, and transmits it to the proprietor in India, even though the proprietor may receive it, it is not income, but only money remitted. I find no authority for this subtlety. Obviously the plaintiff in this case has an income, and it is idle to say for the purpose of the Local Boards Act that he is living not on his income but on transmitted money.
8. It is curious to note that in these local Acts a man is taxed on the quality and quantity of his receipts, not of his expenditure. Two men may occupy houses of the same size, drive in identical motor cars and enjoy the amenities of the Board to exactly the same extent; but while the man whose income is from money-lending outside the locality pays a profession tax, the man whose income is from rentals outside the locality under the present Act goes scot-free. However that circumstance has no bearing upon the present suit which is under the 1920 Act.
9. On both grounds the appeal fails and is dismissed with costs.
10. Connected Appeals Nos. 507 and 509 must be dismissed for the same reason with costs.