NOTOBORO CHOWDARI MAHAPATRO Vs. DASARI KHAMBAYYA DORA

JUDGEMENT

(1.) This second appeal arises out of a suit to recover rent under Section 77, Madras Estates Land Act, by a Mustazir under the Sonno (Chinna) Khimidi Zamindar from a ryot. The plaintiff claimed a share of the produce, but the defendant contended that he is only liable to pay a fixed cash rent. Before the Deputy Collector he filed two receipts Exs. 1 and 2, one of which refers to a patta from the zamindar. The patta itself was not filed before the Deputy Collector. He decreed the suit, There was an appeal to the District Judge of Ganjam. While the appeal was pending a petition was filed for admitting the patta which was said to have been granted by the zamindar in 1905. The District Judge said that it was not likely to be of any use to the defendant and dismissed the petition. On second appeal to the High Court, S.A. No. 902 of 1906, the learned Judge observed that where the District Court rejects a document on a wrong ground the decision of the Full Bench in Vaithinatha Filial V/s. Kuppu Thevar [1919] 42 Mad. 737, does not prevent the High Court from interfering and sent back the case so that the District Judge may consider the application to admit the document on its merits. The case came on before another District Judge, but he refused to admit the patta provisionally marked as Ex. 3 on two grounds: (1) that it was not genuine and (2) that it required registration. He also observed that if it can be admitted it is liable to penalty as it was unstamped. The tenant files this second appeal.

(2.) The learned advocate for the appellant argued that both the grounds of the District Judge are wrong. So far as the first ground is concerned, it may be that there are points that can be urged either way, but I do not see how I can interfere in second appeal. The document bears the seal of the Sonnokhimidi zamindar and also the seal of the Tahsildar of Aska dated June 1921. As the suit itself was in 1922, the latter circumstance does not mean much. The ink does not strike me as very fresh as the District Judge observes, but his other points remain, namely, that the initials of the zamindar are easily capable of imitation. Whatever might be my opinion, I do not see how I can interfere with the finding of fact. This is enough to dispose of the second appeal. But as the second point has also been argued I wish to express my opinion on the matter.

(3.) The learned advocate relied upon the decision in Obai Goundan V/s. Ramalinga Ayyar [1899] 22 Mad. 217. In that case it was hold by two learned Judges of this Court that Ex. 2 therein did not require registration. The document there granted a permanent cowle remission of half the assessment on the ground that the lands were sandy etc. It may be that the document granting remission out of rent due on the land for a definite number of years may be said to have nothing to do with the land or the rent fixed on it as it merely amounts to a remission of a debt and need not be supported by consideration and need not necessarily be regarded as creating an interest in land; but a document remitting half the rent permanently and not for any definite number of years seems to stand on a different footing. If the promise is to be enforced, the tenant is for all time exempt from payment of the full rent. Practically he gets the lease on payment of half the rent. It will not do to say that the rent is the old rent and he only gets a remission of half the amount. Seeing that it is permanent, the amount remitted is infinite and indefinite. But apart from this, if the ground of the judgment is that it merely remits a debt one can understand it. But the grounds are actually expressed thus; The document only evidences an agreement to vary the terms of tenancy with reference to the amount of rent to be paid. As such it cannot be hold to relate to an interest in immovable property, and therefore did not require registration : Satyesh Chunder Sircar V/s. Dhunpul Singh [1897] 24 Cal. 20.