CHENTILNATHAN CHETTIAR Vs. PERI V SP MANICKAM CHETTIAR

JUDGEMENT

(1.) THE plaintiff, whose suit for reimbursement of the amounts he had paid to the government as penal assessment for the period of the defendant's possession of certain lands has been dismissed, is the petitioner in this revision. The learned district Munsif, who had no hesitation in holding that the defendant was bound in law to pay the penal assessment which had been paid by the plaintiff, found however, that the plaintiff could not be said to be interested in the payment. In the result, Section 69 of the Indian Contract Act, on the basis of which action was laid, was held to have no application, and the suit dismissed.

(2.) THE facts and circumstances which led to the plaintiff's claim may be briefly set out. The parties are Hindus and form two branches. In respect of the properties belonging to certain private family charities kept in common, an arrangement for management and enjoyment in turns was entered into on the 15th October 1955, by the plaintiff's father representing one branch and the defendant the other. The arrangement provided for each branch being in continuous possession for a term of three years in turns, the defendant's branch getting possession from the plaintiff's branch from the first of Aipasi, Manmada (18-10-1955 ). The plaintiff's father died on 27-10-1955, and pursuant, to the arrangement the plaintiff took possession of the trust properties from the defendant on 18-10-1958, after the expiry of the three year term of the defendant's branch. Under the terms of the arrangement material for the present, the branch in management has to enjoy the properties of the charities, receive the income therefrom and carry on the trusts, meeting all the expenses and outgoings from the income. Even if excess expenditure has to be incurred the branch in management will have to bear the same. The agreement specifically provides that taxes outgoings during the turns must be paid by the party in management, and there was no liability of one party to account to the other for the period of its management. A specific clause provides that if in respect of the properties or charities action had to be taken against third parties, both the branches should act in consultation and bear the expenses in moieties. The properties are to be recorded in the name of both the parties.

(3.) AFTER the plaintiff entered on his turn, in respect of certain lands which were subject of the arrangement, penal assessment was levied on him by the government for the five faslis 1365 to 1369, the first three being in defendant's turn, and distraint warrant issued. The lands had admittedly been in the enjoyment and management of the defendant in the three faslis, 1365 to 1367. The plaintiff who paid the entire amount for which distraint was threatened sought by this suit reimbursement of the sum of Rs. 163-03, the penal assessment for the three faslis during the defendant's management. The suit claim included interest therein also. The defendant in his written statement did not deny that he had the management of these lands during the faslis in question. He contended that no demand had been made on him during his turn for payment of the land revenue in question. It was further contended that as the Government had treated the lands as poromboke and was levying assessment, the plaintiff and the defendant must be held to be independent trespassers in respect of the levies and there was no liability on the part of the defendant to make any reimbursement or contribution if the plaintiff made the payment when in possession. It was further pleaded that the government had been treating the properties as poromboke and issued "b" memos from fasli 1362 itself, that the defendant was not made aware of the same and that neither the plaintiff's father nor the plaintiff had moved in the matter to context the claim of the Government and to secure pattas for the lands.