P N VENKATA RAO Vs. ANUGA GURUSAMI CHETTI

JUDGEMENT

(1.) This Second Appeal arises out of a suit by the plaintiff to recover a sum of Rs. 76-5-3 as due for the one-ninth share of Saudheyam inam for these faslis the right in which he claims to have purchased from its owner. Both the lower Courts have granted the plaintiff a decree against the first defendant for one-third share, defendants 2 and 3 for one-third share and defendants 4 and 5 for the remaining one-third share. The plaintiff has filed this Second Appeal on the ground that he ought to have been given a joint and several decree against all the defendants.

(2.) Objection has been taken by the respondents that as the value of the suit is less than Rs. 500 no Second Appeal lies. Both the decision on this objection and also the decision of the suit on the merits depend to some extent on the nature of the inam held by the plaintiff. It is therefore necessary to consider it. The defendants are the mittadars of a mitta known as Pallipattu consisting of two villages. One-third of the income of the mitta is to be paid to certain persons and this payment is called Saudheyam inam and because the fraction payable is one-third the inamdars are called Thrishvekamdars. This right to one-third of the income was held by three persons and the right of one of them viz., one-ninth has been purchased by the plaintiff. A suit was filed by the plaintiff on a former occasion. It was for Rs. 72-8-3 the amount due for three years. There was a compromise between the parties by which it was settled that the plaintiff should be paid for that year Rs. 18-1-3 and from fasli 1335 onwards Rs. 20-8-5 annually so that the total for three years comes to Rs. 61-9-3. What exactly was the nature of the dispute between the parties in the former suit and what exactly was settled by means of this compromise in not very clear and one has to infer these things as best as one can. It looks as if the Thrishvekam orginally amounted to one-third of the actual collection and as the collection naturally varied, the Thrishvekam payment also varied. The parties probably desired to put an end to this variability of the claim and to make it definite for all time. So they fixed it at Rs. 20-8-5 annually and this was all that was intended by the compromise. As the right which the plaintiff claims in this suit is a right to payment by reason of some interest in immovable property I think that Art. 13 to the second Schedule of the Provincial Small Causes Courts Act applies, and the preliminary objection must therefore be overruled.

(3.) Coming now to the merits, Mr. Sitarama Rao the learned Advocate for the appellant argues that on a construction of the compromise decree the defendants are jointly and severally liable. From what I have already observed it is clear that the compromise decree is not the basis of the liability of the defendants or the right of the plaintiff. There was a preexisting right to the inam and all that was sought to be probably settled by the compromise was the actual amount. I do not think it is proper to construe the compromise decree as in the case of a bond or promissory note executed by several executants. In such a case the natural construction of the document would be that they are jointly and severally liable. But in drafting the compromise and the decree based upon it this would not probably be the consideration present in the minds of the parties the main consideration being to make the amount of the claim definite. This is all what they intended to express. In the absence of any words showing definitely that it was intended that the defendants should jointly and severally pay the amount, I do not think it is proper to imply from the wording of the compromise decree that it was intended to be a joint and several liability. As we do not know the origin of this inam and the manner by which the plaintiff and the other Thrishvekamdars become owners of this Thrishvekam inam one has to fall upon general principles in deciding the question whether the plaintiff is entitled to recover the amount from the defendants jointly and severally. On this question there are two decisions in the reports which may be of some help Mosafkanni Ravuthar V/s. Doraiswami (1926) 54 M.L.J. 30 and Suryanarayana V/s. Sree Raja Venkata Ramayya Appa Rao Bahadur (1928) 56 M.L.J. 273. In Mosafkanni Ravuthar v. Doraiswami (1926) 54 M.L.J. 30 myself and Reilly, J. discussed the principles applicable to a claim for payment arising out of land such as porupu from the point of view as to whether it should be jointly and severally paid. There I observed that if the defendants were holding the lands as tenants-in-common they would be jointly liable but if they were holding the land in severalty they would be severally liable. In the present case for instance if the defendants formed a joint family undoubtedly there ought to be a joint and several decree. But the evidence and the findings of the courts below are that they did not form a joint family but that they were holding the land as tenants-in-common. Mr. Somayya the learned Advocate for the respondent seeks to draw a further distinction between that case to this case. In the above decision in Mosafkanni Ravuthar V/s. Doraiswami (1926) 54 M.L.J. 30 the finding was that the wet lands were held in severalty but that the dry lands were held by the defendants jointly and no one of the defendants was in possession of any definite plots and in the case of the Pannai lands consisting of 12 shares the whole of land was based by all the sharers to certain tenants under a perpetual lease. Nothing further appears from the facts of that case. In the present case though the lands were not divided as between the tenants, each of the landlords is issuing separate patta for his share of the rent. We have got Exs. I, II and III issued by the first, second, third, fourth and fifth defendants separately. Where only the melwaram is owned by the landlord, the question whether the right is held by the defendants as tenants-in- common or in severalty should be put in respect of the melwaram. Now if any one of the tenants-in-common is in management of the village and is collecting the whole rent and afterwards is accounting to his sharers or where the lease itself is jointly issued by all the three sharers or where muchilika is taken jointly in favour of all the three sharers it may be said that even the melwaram is held by the landlords as tenants-in-common. But in this case each sharer issues a separate patta and takes a separate muchilika in respect of his share and collects the rent himself. If he does not collect, he loses his money and the other sharers are not affected by it. No one landlord is accountable to any others. In such a case through the land itself is held by the defendants as tenants-in-common it seems to me that the melwaram is held by the landlords in severalty. No such distinction was suggested in the decision in Mosafkanni Ravuthar V/s. Doraiswami (1926) 54 M.L.J. 30 and therefore no reference to such a distinction was made in that decision. On the peculiar facts of this case I accept the distinction sought to be drawn by Mr. Somayya and on this ground I confirm the decision of the courts below.