BAHADUR V. PONNUSWAMI PILLAI Vs. RAJA SIR S.R.M.M.A. ANNAMALAI CHETTIAR THROUGH AGENT M.R. RAMAN CHETTIAR AND ORS.

JUDGEMENT

(1.) THE Zamindar of Sivaganga, the appellant, instituted the suits out of which these appeals arise for recovery of arrears of poruppu with interest alleged to be due to him for faslis 1347 and 1348 from the respondents as joint owners of certain villages in the Zamindari granted to their predecessor in title on a permanent cowle on 9th February, 1881. The claim is based on the cowle -deed as modified by a compromise decree made in a prior litigation between the parties. The respondents pleaded, inter alia, that they were entitled to a deduction of the cess payable to Government by the appellant as landholder on the poruppu due to him, as such cess not having been paid by the appellant was recovered from the respondents. The District Munsiff, Devakottah, who tried the suits disallowed the deduction claimed, as, in his view, the respondents failed to prove that they paid the cess payable by the appellant, and passed a decree for the arrears sued for with interest at 6 per cent, per annum and costs. On appeal, the learned Subordinate Judge of Devakottah held, differing from the trial Court, that inasmuch as the Zamindar admittedly did not pay any part of the cess payable in respect of the villages in question, the entire cess must be taken to have been paid by the respondents who could not have avoided such payment. And, being of opinion that the appellant was liable to pay a proportionate part of the cess calculated on the poruppu payable to him, the learned Judge allowed the deduction claimed in each of the suits and modified the decree of the trial Court accordingly. Two contentions have been raised before us on behalf of the appellant. In the first place, it is argued that after the enactment of the provisions relating to a sub -landholder which were introduced in the Madras Local Boards Act, 1920, by the Amending Act (XI of 1930), the landholder has ceased to be liable for any part of the cess due in respect of the lands held by the sub -landholder who is made liable directly to the Government for the entire cess payable on such lands with a right to reimbursement from the tenants of one half of the cess paid. It is accordingly claimed that the respondents who are admittedly sub -landholders within the meaning of the Act are not entitled to reimbursement against the appellant as landholder in respect of any part of the cess which they might have paid to the Government. And, secondly, the appellant as landholder cannot, in any case, be held liable for more than half the cess payable on the amount of poruppu and the respondents are not entitled to a deduction of the full amount of such cess as claimed by them. We are of opinion that both these contentions must fail.

(2.) THE questions turn entirely on the true effect of certain rather obscurely worded provisions of the Madras Local Boards Act, 1920, as amended by the Madras Local Boards (Amendment) Act, 1930. These provisions may be summarised as follows: Section 3(9)(21) and (22) define " landholder," " sub -landholder " and " tenant" respectively and, for the purposes of these appeals, the expressions may be taken to refer to the proprietor, the registered holder of an under -tenure and an occupier of land in an estate respectively. Section 78 provides for the levy of land cess on the " annual rent value " of all occupied lands at the rate of one anna and a half for every rupee of such value. Section 79 lays down rules for fixing the annual rent value of lands held on different tenures, and provides that, in the case of a zamindari estate such as the one here in question, the annual rent payable by the tenants together with any water -rate shall be taken to be the annual rent value of the lands. The District Collector is empowered, under Section 80, to require certain landholders and sub -landholders to furnish lists of their lands specifying, in the case of a landholder who has created an under -tenure, the kattubadi, jodi, poruppu or quit rent payable to him by the sub -landholder, and, in the case of a sub -landholder, the annual rent value of the lands occupied by him exclusive of the water -rate, if any, payable by his tenants direct to Government, and, under Section 81, to assess the landholder or sub -landholder "according to such list." Section 88 provides for payment of land cess by landholders and sub -landholders and reads thus:

(3.) IT is argued for the appellant that, inasmuch as the sub -landholder is required under Section 80(2)(b) to specify in the list of lands to be furnished by him the annual rent value of the lands occupied by him and the Collector has under Section 81 to assess the tax " according to such list," the sub -landholder is liable for the entire cess and the landholder is under no liability to pay any part of it. This contention overlooks that the landholder is required under Section 80(2)(a)(1) to specify in the list to be furnished, by him to the Collector the kattubadi, etc., payable to him by a sub -landholder, and he has to be assessed by the Collector, under Section 81 according to such list, just as the sub -landholder, is to be assessed according to the list furnished by the latter; while Section 88 provides that every landholder and sub -landholder shall pay to the Collector the land cess due in respect of the lands held by him exclusive of the amount of such cess, if any, payable by the sub -landholder or landholder as the case may be. These provisions clearly indicate that the landholder is directly responsible to pay the land cess to the District Collector on the kattubadi or poruppu payable to him by the sub -landholder, and the absence of any provision in Section 88 for reimbursement of the latter in respect of such cess also points to the same conclusion. If, however, the landholder fails to pay the cess due from him and the sub -landholder pays it to avert attachment and sale of the lands, the latter has his remedy under Section 108(g) of the Transfer of Property Act which entitles a lessee to make any payment due from the lessor and recoverable against the property and deduct it with interest from the rent. It is under this provision that the respondents claim the deduction now in question.