John Wallis, C.J.
1. The question involved in this appeal is whether a zemindar or mittahdar who under his sannad has a right to collect the jodi payable by an inamdar; has a charge for arrears of such jodi on the interest of the inamdar. Before considering this question it may be well to refer to the right of Government to a charge for arrears of revenue, and to the rights of the inamdar for arrears against the ryots themselves.
2. It was held by Innes, J., in Subbaraya v. Sub-Collector of Chingleput 6 M.K 303 that 'the right of Government is only a right to a charge on the land, and a right to forfeit by due course of law, the title of the person holding the land who does not pay the charge;' and this was cited with approval by Shephard, J., in Secretary of State v. Ashtamurthi 13 M. 89 . In the present case the Government assigned its right to revenue to the inamdar subject to the payment of a jodi, and it is well settled that by virtue of such assignment the inamdar did not acquire a charge upon the land, but was left to recover rent from the occupiers under the provisions of the Madras Rent Recovery Act of 1865; and it was not until the passing of the Act of 1908 that landholders including certain inamdars acquired a statutory charge for rent. As regards the jodi payable by the inamdar to Government it is, where it has not been assigned, recoverable by Government, like zemindars' peshkush, by sale of the inamdar's interest under the law in force for the time being, now the Revenue Recovery Act, 1864. Under Section 2 of that Act the land, the buildings upon it, and its products are to be regarded as the security for the public revenue; but provided they have paid the rent to the land-holder the ryots are not affected by the land-holder's default to pay the revenue due by him (section 33), and all that Government can do is to sell the interest of the defaulter free of all encumbrances. The right to sell free of encumbrances in such a case is conferred by Section 42 of the Act.
3. Coming now to cases where the right to collect the jodi has been transferred to the zemindar or mittahdar under his sannad, there is a long series of decisions in this Court that, when Government transfers the right to collect the jodi to a zemindar or mittahdar in consideration of his undertaking to pay a fixed peshkush, the zemindar or mittahdar has no charge upon them and that a suit by him to recover jodi is a suit for rent and nothing more and so cognizable in this Presidency by the Court of Small Causes.
4. It was apparently so held in Second Appeal No. 692 of 1893 and though a different view was taken in Second Appeal No. 822 of 1894, [vide foot-note in Vizianagaram Maharajah v. Sitaramarazu 19 M.K 100 it was again so ruled by Shephard and Subramania Aiyar, JJ., in Mullapudi Balakrishnayya v. Venkatanarasimha Appa Rao 19 M.K 329 and Venkatagiri Rajah v. Venkat Rau 21 M.K 243, Gajapati Rajah v. Suryanarayana 22 M.K 11 and Appa Rao v. Sobhanadri Rao 24 M.K 158 are to the same effect; and in Kasturi Gopala Ayyangar v. Anantaram Thivari 13 M.L.J. 248 it was again laid down broadly that assignees of revenue cannot proceed under Section 42 of the Revenue Recovery Act and have only a personal claim. On the principle of stare decisis I feel bound to adhere to these decisions. The fact that jodi was held to be rent payable' to a landholder by a tenant within the meaning of the Rent Recovery Act, 1865, having regard to the definition of landholder [see Lakshminarayana Pantula v. Venkatarayanam 8 M.L.J. 43 and the cases there cited], and that similar provisions were to be found in the Madras Estates Land Act, 1908, until these provisions were themselves repealed by the amending Act of 1909, has no direct bearing on the question but makes it more than ever undesirable to question the authority of the decisions laying down the competency of the Small Cause Courts to try suits for jodi on which the Legislature may have acted in finally deciding to leave such suits to the Civil Courts. The earlier cases of Suryanna v. Durgi 7 M.S 258 Alubi v. Kunhi Bi 10 M.K 115 and Krishnasami v. Venkatarama 13 M.K 319 were not cases of jodi, but assignments of portions of the revenue payable directly by the ryot and in the last of these cases Shephard, J., who was a party to some of the later decisions doubted if a mere assignment of revenue would convey a charge. In Ramachandra v. Jaganmohana 15 M.K 161 the point did not arise. These decisions, in my opinion, afford no sufficient ground for questioning the numerous subsequent decisions expressly in point. If the law there laid down is to be altered it should, I think, be by Legislature. We must reverse the decree in so far as it affects the 8th defendant and allow his appeal with costs throughout. The memorandum of objections by the 7th defendant is dismissed with costs. As regards the defendants Nos. 2 to 6 the decree is varied so as to make it a decree against the joint family property in their hands under Order XLI, rule be, of the Code of Civil Procedure.
Seshagiri Aiyar, J.
5. It is not without hesitation that I have come to the conclusion that the appeal should be allowed.
6. The first question is whether the jodigai due from the inamdar is a charge upon the land. I understood Mr. Ramachandra Aiyar to concede that if it is directly payable to Government, it would be a first charge. Apart from this admission, I am of opinion that there is a first charge for the jodigai. It was pointed out in Secretary of State for India v. Bombay Landing and Shipping Co. 6 B.H.C. R; 23 that by the Common Law of this country, the debt due to the King took priority over other debts, with the possible exception of those due to Brahmins. This view was accepted in some of the early Bengal Regulations. See Judah v. Secretary of State for India 12 C.K 445, At the time of the Permanent Settlement, it was recognised in Madras. Vide Section 6 of Regulation XXVII of 1802. In the Revenue Recovery Act of 1864, there is an express provision to that effect. I am satisfied that the jodi payable by inamdars is within the purview of that Act
7. Mr. Ramachandra Aiyar strongly relied on some of the decisions of this Court which have held that a claim for kattubadi or jodi is cognizable by the Court of Small Causes. They are all cases in which the payments were due to the zemindar as part of his income. The term jodi or quit-rent is applied indiscriminately to what is recoverable by a proprietor from his under tenure-holders as well as to payments due to Government by way of assessment. None of the cases, so far as I have examined them, related to jodi payable to Government. Further these decisions proceed on the construction of the terms 'landholder and tenant' in Act VIII of 1865. The Estates Land Act is different. Even under the old Act, the decisions were not uniform. See Alubi v. Kunhi 110 M.K 115, Vizianagaram Maharajah v. Sitaramarazu 19 M.K 100 (the case in the foot-note). It is true that a larger number of cases have taken a different views Vizianagaram Maharajah v. Sitaramarazu 19 M.K 100, Mullapudi Balakrishnayya v. Venkatanarasimha Appa Rao 19 M.K 329, Gajapati Rajah v. Suryanarayana 22 M.K 11, Lingam Krishna Bhupati Devu v. Vikrama Devu 10 M.L.J. 256; Appa Rao v. Sobhanadri Rao 24 M.K 158. Mr. Justice Subramania Aiyar has explained in Lakshminarayana Pantulu v. Venkatarayanam 21 M.K 116 the reason of this change. Although on the principle of stare decisis it is undesirable to upset this course of decisions, I am not prepared to extend them to cases in which the jodi is payable to Government.
8. The next point for consideration is whether the plaintiff can stand in the shoes of the Government and claim a first charge. If the right to collect the jodigai was assigned to him as such, I would be prepared to hold that he has a first charge. I accept. Mr. Srinivasa Aiyangar's contention that an assignee of Government Revenue is entitled to the security which the Government had, although he may not have all the statutory remedies which the assignor had. The principle of Section 141 of the Indian Contract Act is applicable to such assignment. North, J., in In re Churchill, Manisty v. Churchill 39 Ch. D. 174 says that the priority which the Crown has enures for the benefit of the surety. This is the view taken in Suryanna v. Durgi 7 M.K 258, Krishnasami v. Venkatarama 13 M.K 319. In Kasturi Gopala Ayyangar v. Anantaram Thivari 26 M.K 730 the learned Judges say that if the tax-payer was in a position to be proceeded against by the Government, the assessment will be a charge. I understand the decision to lay down that so long as the distinctive character of Government assessment remains, whoever may be the person that collects it, he will have a first charge. If it lays down that under no circumstances can art assessment which is collected by an assignee create a charge, I respectfully dissent from that view.
9. The difficulty in this case arises in finding out whether the jodigai as such was assigned to the plaintiff's predecessor-in-title. The sannad is not produced. We are not in a position to say whether in the Permanent Settlement a distinction was made between the right to collect the jodigai and the right to collect rents from tenants. It cannot be said that the jodigai was not included in the assets on which the peshkush was fixed. One circumstance on which Mr. Ramachandra Aiyar laid stress has influenced my finding on the point. From Exhibits G and H, it appears that the Government decided to claim the entire jodigai as the mittahdar had been given waste lands in other villages to which he was not entitled. It was argued by the learned Vakil for the appellant that the income from these waste lands was taken into account in including the whole of the jodigai in the peshkush. I think there is force in the argument. If this is the correct view, the Government did not assign the jodigai as such; and, therefore, the mittahdar cannot claim a first charge. This state of affairs can only be rectified by Government.
10. I agree in the order proposed by my Lord.
11. The memorandum of cross-objections by the 1st respondent coming on for hearing on 10th and 14th September 1915, respectively, and having been set down to be spoken to on the 24th September 1915, and by order made on that day coming on for re-hearing this day, the Court delivered the following