1. The plaintiff respondent brought the suit out of which this appeal arises to recover from the defendants (one of whom only appeals) the sum of Rs. 19,665-13-75 with interest thereon to the close of the year 1879, that sum being the amount of Road Cess paid by the plaintiff on account of certain villages held by the defendants within the Raj of the plaintiff. The plaint alleges that these villages which in fact constitute the pergunndh Chandi were granted to the father of the defendants for his maintenance by a former Maharajah, and are in defendants' possession. It further alleges that the Maharajah or the Raj has hitherto paid the revenue due to Government on account of the villages, realising the same from the defendants or their father. It further alleges that the Raj has paid Road Cess on the villages ever since the introduction of that impost which was imposed under a Local Act No. X of 1871, Bengal Council, and that the defendants are justly liable for the amount now claimed.
2. The defendant appellant in his written statement raised a question of limitation as to part of the claim. His main contention, however, was that the Road Cess was due from the proprietor of the property that is from himself and not from the plaintiff who is not the proprietor and, therefore, if the plaintiff chose to pay the cess the defendant could not be liable to him. He also alleged that the sanad granted by Maharajah Madhab Singh only bound the grantee defendant to pay through plaintiff the Government revenue and did not impose upon them a liability for cesses. Objection was taken to the claim for interest.
3. The lower Court threw out the plea of limitation. It then, upon its construction of the 'sanad' of 1214F--1807 A.D., held that the grant of the pergannah to defendants' father was subject to payment of Government revenue 'mulwajit,' and cesses being in the nature of revenue, plaintiff was entitled to recover the cesses. The lower Court then went on to say that the defendants were tenure-holders within the meaning of the Road Cess Act (X of 1871) and were under the 21st and 25th sections of that Act liable to plaintiff. Lastly it held that the payment by plaintiff of defendants' dues ' was not a voluntary payment.
4. Of the two defendants, Giridhari Singh alone defended the suit, and he is the appellant before us.
5. His pleader has discreetly, in our opinion, abandoned the plea of limitation which is raised again in the first five grounds of appeal.
6. He has, however, discussed and relied upon the Road Cess Act to defeat the plaintiff's claim, although none of his written grounds of appeal really raise the question of the effect of that law.
7. We think it unnecessary to discuss the bearing of the Road Cess Act upon the case. We do not affirm the correctness of the finding of the Sub-Judge that the defendants are tenure-holders within the meaning of that Act (now replaced by Act IX of 1880, B. C.) and we think that serious difficulties would arise in the plaintiff's path if his suit were brought to recover the Road Cess ' as if the same were arrears of rent.'
8. We think that the case ought to be dealt with on a consideration of the terms upon which the appellant and his brother hold the pergunnah. The appellant has not thought proper to file his sanad but he has filed a copy of a sanad by which Maharajah Madhub Singh abdicated his position in favour of his eldest son and successor Maharajah Chatter Singh in 1214F--1807 A.D., and in which the former recites that he has granted a milkiat sanad to each of his younger sons including defendants' father Kerat Singh. These grants of pargannas were made for the maintenance of the grantees who were to enjoy the profits subject to payment of the Government revenue which was to pass through the Maharaja's hands as holder of the Raj. We may here incidentally refer to the construction put upon the nature of these grants in the case of Babu Ganesh Dutt v. Maharaja Moheshur Singh 6 M. I. A. 164 p. 200. It was there pointed out that these grants by way of Babua allowances were essentially different from absolute grants because the rent and assessment, i.e., Government revenue were payable to the Rajah, the property never being separated from zemindari at all; see page 197. It is, therefore, useless for the defendant to deny proprietary right of the family of which the Maharajah, plaintiff, is the head.
9. Then are we to hold that the plaintiff is to pay Road Cess from the income of this zemindari exclusive of this purganna while the grantee holds all the profits and the Maharaja none? We think not. The terms of the sanad before us (and if the defandant's own sanad is more explicit he should have produced it) allude to the profits of the perganna as conferred upon the grantee, and if the Government has by legislation imposed a cess or tax upon these profits it must come out of the profits. The perganna being still a part of the Raj estate the Government only deals directly with the recorded holder of the estate. We think that he is entitled to call upon the defendants to bear their share of the public burden imposed on the estate proportionate to that part of the estate which they hold under somewhat peculiar terms. It is no doubt certain that the Maharajah for the time being could not, by any act of his own, diminish the profits of or impose a liability on the perganna granted to the defendants but the case of a cess imposed by Government on the land is a burden which the defendant cannot avoid even if it does, as of course it does, diminish their profits.
10. We think the contention that the Maharajah cannot recover on the ground that he made a voluntary payment cannot be supported for a moment. We are disposed to think that, in the absence of any evidence that the defendant has ever been called upon to pay the cess or has over paid it for any of the years prior to 1877, interest should only run from the date of summons having been served upon him. With this inconsiderable variation, we affirm the decree of the lower Court and dismiss the appeal with costs.