1. The question for our decision in these appeals is whether the lower Courts were right in holding that the defendants who appeal are jointly and severally liable for the Jodi on their Agraharam or whether they are only liable for the payment of shares of the total amount of Jodi proportionate to the extent of the holding of each defendant. I agree with my learned brother, whose judgment I have had the advantage of reading, that the answer depends mainly on an issue of fact as to the terms prevailing between the Zemindar and the Agraharamdars, but there are besides certain judicial decisions in which it has been recognised that Agraharams are ordinarily tenure held on a single and indivisible tenure.
2. In Elliaya v. Late Collector of Salem 3 M.H.C.R. 59 it was found that joint liability for Teervai was a well understood condition attached to the holdings of Agraharam tenants; and in this matter the High Court treated the decision of the lower Courts as final. In Zamindar of Ramnad v. Ramamany Ammal 2 M.P 234 : 4 Ind. Jur. 442 :1 Ind. Dec.(N.S.) 435 the grant of a Maganam or division of a Zemindari was contracted with Agraharams or Dharmasanam villages which are granted to several persona on a single rent. In Ramayya v. Subbarayudu 13 M.K 25 : 4 Ind. Dec.(N.S.) 728 the jural relation of Agraharamdars was stated to be not that of co-parceners but that of joint owners of an Agraharm village.
3. Subhanadri Appa Rao v. Gopalakrishnamma 16 M.P 34 : 5 Ind. Dec. (N.S.) 731 was another case in which an argument was put forward that, as the holders of an Agraharam bad divided it and were holding it in separate shares, they were each only liable for a part of the Jodi proportionate to their shares. This Court held in first appeal that the defendants were jointly and severally liable to the Zemindar's claim and observed that any division among themselves to which the Zemindar was not a party could not affect his right to look to all the lands of the village for his Jodi.
4. In the present appeals the lower Appellate Courts, the Subordinate Judge in Second Appeal No. 359 and the District Judge in Second Appeal No. 1789, have found as a fact that the demand of the Jodi was fixed for the entire Agraharam as a unit in a lamp sum. In support of this finding they refer to the D. C. B. accounts and the prevalent system in the village of periodical exchange of holdings, which would make it difficult for the Zemindar to collect Jodi from the Swasthayamdars separately.
5. The position of mere transferees of portions of the Agraharam village would be different. There would be no privity of contract between them and the Zemindar; and the privity of estate occasioned by their occupation of land within the Zemindari would not create a liability out of proportion to the Quantum of estate occupied by them [Vide Kunhi Sou v. Mulloli Chathu 17 Ind. Cas. 933 : 38 M.P 86 : 23 M.L.J. 695 : 12 M.L.T. 605 and Stevenson v. Lambard (1802) 102 E.R. 490 : 2 East 575 : 6 R.R. 511 But for the defendants to escape liability on the ground that they are only transferees or assignees of portions of the Agraharam from the original Agraharamdars it was necessary for them to set up such a special case at the trial. They did not do so. The plaint speaks of them all as Agraharamdars, and the written statement speaks of their ancestors and their partners but not of their assignors or vendors. Only the 19th defendant in Original Suit No. 8 of 1913 pleaded that he was a purchaser, and he was exonerated in the lower Appellate Court on the ground that he purchased the land in his enjoyment after the date when the arrears claimed by the plaintiff fell due on it. The joint and several liability of the defendants is not based on the assumption that the Jodi is a charge on the Agraharam, as suggested in ground No. 4 of the Appeal Memorandum in Suit Appeal No. 359 of 1918, but on contract.
6. It has been held that Jodi is not a charge upon a Shrotriam or an Inam, except where the grant is by Government and the Jodi is collected as land revenue under the Madras Revenue Recovery Act (Act II of 1864), when Section 2 of the Act comes into play and makes it a first charge upon the land and its produce. See Subbaraya Goundan v. Ranganatha Mudaliar 32 Ind. Cas. 971 : 30 M.L.J. 387 : (1916) 1 M.W.N. 216 : 3 L.W. 273 : 40 M.P 93. Jodi due upon an Inam or Agraharam situated in a Zemindari estate is not rent of ryoti land which be-comes a charge on the holding under Section 5 of the Madras Estates Land Act. There is no charge in the present case, but the defendants are jointly and severally liable on their contract as Agraharamdars on the findings as to the terms of that contract.
7. As regards the plaintiff's claim for interest, which is the subject of the Memorandum of Objections in Second Appeal No. 359 in the plaint, it is stated to be claimed at Re. 1 per cent. per mensem ' under rent law and damages.'
8. It has been found that there is no established custom to pay interest in this Agraharam and that there have been no notices in writing demanding interest.
9. As Jodi is not 'rent' as defined in Section 3, clause 11 of the Madras Estates Land Act, Act I of 1908, interest cannot be claimed under Section 61 of that Act.
10. In cases where neither the Interest Ant,. Act XXXII of 1839, nor the rent law apply and where there is no contract, express or implied, to pay interest Courts of Equity sometimes award interest in the form of damages [see Abdul Goffur Rowther v. Hamida Beevi Ammal 52 Ind. Cas. 505 : 42 M.P 661 : 25 M.L.T. 242 : 30 M.L.J. 456 : (1919) M.W.N. 484 but there is no equity in the present case for allowing the plaintiff interest when he has allowed the Jodi to fall into arrears without making any demand for interest.
11. These second appeals are dismissed with costs of 1st respondent and the memo. of objections is dismissed with costs of appellants.
S.A. No. 359 of 1918.
12. The only question raised for decision in this second appeal is whether the Agraharamdars, the defendants, are jointly and severally liable to the Raja who owns the Zemindari for the whole of the Jodi due on the entire Agraharam village or whether they are only separately liable, each of them for the proportion of the Jodi properly chargeable on the share of the village owned by him.
13. The village has been enjoyed in 86 1/2 Swasthyams or shares, but how it came to be so divided there is nothing to show. The lower Appellate Court has found on the evidence that the Agraharam was always treated as a single unit by the Raja and his predecessors and that the plea of the defendants that they, the landlords, have by their course of conduct split it up into parts and have recognised the several holdings of the various defendants as separate and independent is not established. This is a finding of fact which we must accept in second appeal, especially as it is justified by the evidence. Though payments were accepted from individual Agraharamdars from time to time by the Zemindar's agent of the share of the Jodi payable by each on his individual holding, such payments were always treated as made on account towards the total Jodi payable on the village and receipts were given and accepted accordingly. The redistribution of the lands among the Agraharamdars once in 12 years without reference to the Zemindar is a strong indication that the holding of the Agraharam lands in shares by them had nothing to do with the Zemindar. The Jodi was fixed for the whole village as a single amount. All these would show that the Agraharam was held as a single estate on a single rental by the Agraharamdars. That they are usually held as single holdings on single rents and where there are several tenants in an Agraharam they are jointly liable for the whole rent, has been recognised by this Court in Elliaya v. Late Collector of Salem. 3 M.H.C.R. 59 Zamindar of Ramnad v. Ramamany Ammal 2 M.P 234 : 4 Ind. Jur. 442 : 1 Ind. Dec.(N.S.) 435 and in Subhanadri Appa Rao v. Gopal Krishnamma 16 M.P 34 : 5 Ind. Dec. (N.S.) 731. As pointed out in the last case, any arrangement made between the Agraharamdanj to enjoy the lands in shares and pay the Jodi proportionately is not binding on the landlord unless he consents to it. He would be entitled to get his Jodi as a whole from all persons who are bound by the original contract of letting. No doubt the original parties in this case must have died out long ago, but their heirs and descendants who enjoy the Agraharam, will equally be bound and they would, therefore, be liable jointly and severally for the Jodi,
14. It was urged by Mr. Vetkatarama Sastry for the appellants that the oases above cited, recognising the joint liability of the whole body of Agraharamdars, proceeded on the view that the Jodi was a charge on the lands, which was the then prevalent view, and that as it is now settled by the ruling in Subbaraya Gounden v. Ranganatha Mudaliar 32 Ind. Cas. 971 : 30 M.L.J. 387 : (1916) 1 M.W.N. 216 : 3 L.W. 273 : 40 M.P 93 that in the absence of a contract or custom to that effect, Jodi is not a charge on land in favour of the Zemindar, they should not be followed. The joint liability to pay the whole rent personally is not, however, based on the existence of any charge but on contract, and no doubt only persons bound by the contract will be subject to it,
15. Mr. Venkatarama Sastry then contended that persons who had become Agraharamdars by purchase of lands in the village will not, to liable on contract but only on the ground of privity of estate and so far as they are concerned, their personal liability will be restricted to the share of Jodi rateably chargeable on their lands. The authorities cited by him, Gamon v. Vernon (1078) 83 E.R. 532 : 2 Lev. 231, Stevenson v. Lambard (1802) 102 E.R. 490 : 2 East 575 : 6 R.R. 511 and Kamala Nayak v. Ranga Rau 1 M.H.C.R. 24 and the observation in Kunhi Sou v. Mulloli Chathu 17 Ind. Cas. 933 : 38 M.P 86 : 23 M.L.J. 695 : 12 M.L.T. 605 do establish the position that an assignee from a lessee of a part or share only of the leased property is personally liable for his proportionate share of rent on the ground of privity of estate. Bat so far as I can see, only question of privity of estate was not raised in this case in the lower Courts. None of the appellants before us nor any of the other defendants except the 19th defendant, who has been exonerated, pleaded that he was an assignee and, therefore, not liable for the whole rent. The case proceeded on the footing that they were all joint Agraharamdars and the only plea put forward to make the liability several was that the landlord had recognised their separate holdings by his conduct. As already stated, that plea was found against. I do not think we can properly allow the plea that the defendants or any of them ate only assignees to be raised for the first time in second appeal. as it would require a fresh trial on facts. I would disallow the plea and accepting the findings of fact by the lower Appellate Court dismiss the second appeal with costs of the 1st respondent.
16. The memo, of objections by the Zemindar raises the question of interest on arrears of Jodi found due. It was claimed in the plaint as payable by ' rent law' and as damages; subsequently it seems to have been also claimed as payable by custom. The lower Courts have found that no such custom has been proved. The Estates Land Act does not apply to this case as the relationship between the Zamindar and the Agraharamdars is not that of landholder and ryot. The Interest Act, Act XXXII of 1839, does not apply as no demand was made in writing for interest. The only ground that remains is the claim by way of damages, and it was pressed before us that interest should be awarded by way of damages for non-payment on due date. No doubt in a proper case interest may be decreed by way of damages even though it is not claimable under the Interest Act. That was so laid down in the recent ruling of this Court in Abdul Goffur Routher v. Hamida Beevi Ammal 52 Ind. Cas. 505 : 42 M.K 661 : 25 M.L.T. 242 : 30 M.L.J. 456 : (1919) M.W.N. 484 where the previous decisions are all considered, But no proper ground has been shown in this case to award interest as damages; mere non-payment on due date is not in my opinion sufficient to justify such an award. Plaintiff has shown no equity in his favour for it In fact he does not seem to have relied on it as a ground of claim in the lower Appellate Court, where custom was the main ground urged. I would, therefore, dismiss the memo, of objections also with costs of the appellants.
S.A. No. 1789 of 1918.
17. This second appeal has not been separately argued. Following the judgment in Second Appeal No. 359 of 1918, this second appeal is also dismissed with costs of 1st respondent.