G SRINIVASA AYYAR Vs. TSSWAMINATHA ODAYAR

JUDGEMENT

(1.) This appeal raises a question regarding the effect of Proviso C to S. (3) (ii) of Madras Act, 4 of 1938. The parties to this appeal and the facts affecting the decision of the question under Proviso C are precisely the same as those dealt with by a Bench composed of Burn and Stodart JJ. in Swaminatha Odayar V/s. Srinivasa Aiyer ( 39) 26 A.I.R. 1939 Mad. 942, though that decision arising out of an application under Section 20 of the Act will not operate as res judicata. Briefly the facts are these. The respondent was assessed to property tax in respect of properties at Mannargudi, the rental value of which is Rs. 495 per year. He was also the owner of properties in Tiruvarur, the rental value of which was Rs. 210. The municipal assessment register regarding the Tiruvarur properties retained during the relevant period the name of a former owner who had been dead for many years, Balasubramania Odayar. The respondent was a minor adopted by his grand-uncle and his guardian was his natural mother Meenakshi. In respect of the property tax on the Tiruvarur properties for the first half year of 1935-36 a notice, Ex. R-11, was sent with a covering letter to Meenakshi, without any description of her as the guardian of the minor owner, and the owner of the property at the head of the notice was stated to be Balasubramania Odayar. Exhibit R-12 is a receipt for the tax in the second half year of 1935-36 paid by the tenant Mr. Sambasiva Ayyar on 7 September 1935, who states that he paid it on behalf of Meenakshi Ammal and her name is written at the head of the receipt. This receipt is, however, before the relevant period under Proviso C. During the relevant period we have the following documents. Exhibit R-13 relates to the second half year of 1985-36. The notice of demand goes in the name of the deceased owner Balasubramania Odayar. It bears a receipt showing that the tax was paid by Mr. Sambasiva Ayyar who produced the document. It does not appear that the notice was otherwise served on anybody. Exhibit R-14 is a notice for the first half year of 1986-87. It purports to have been issued to the occupier as such. The English portion of the notice recites, "that the tax remains unpaid by the owner, although the time allowed after the service of the notice on him has expired," but in the tamil translation which forms part of the notice this passage is. scored out. Exhibit R-15 shows that the tax was paid by Mr. Sambasiva Ajjyar on 28 January 1937. Exhibit R-17 is the notice regarding the second half year of 1986-37. The notice runs in the name of the deceased Balasubramania, Odayar. At the foot it is noted that "occupier notice was served" and there is a receipt in the name of Balasubramania Odayar. Exhibit R-19 is a notice for the tax for the first half year of 1937-38 served on the occupier, Mr. Sambasiva Aiyer on 19 February 1938. It thus appears that the name of the owner Swaminatha Odayar who was a minor is not found in any of the records, though his guardian was served before the relevant period with a notice demanding the tax. During the relevant period the tax was paid by the tenant and he has given evidence that he was paying it under the instructions of the guardian of the owner.

(2.) The Bench which decided the case already referred to held that this was a case in which the owner had escaped assessment, not a case in which he had been assessed to property tax. Since that decision was pronounced there have been numerous other decisions which have thrown light on the effect of provision to Section 3 (ii) in cases in which tax was demanded and paid from persons standing in a representative capacity and there has been a good deal of light thrown on the question whether the term "assessment" denotes merely the writing of the name in the assessment register or whether it denotes primarily the demand and payment of tax. For convenience of reference the following cases may be quoted: Sarveswara V/s. Umamaheshwara Rao ( 41) 28 A.I.R. 1941 Mad. 152, Swarnam Iswariah V/s. Kanappa Chetty ( 41) 28 A.I.R. 1941 Mad. 704, Tirugnanavalli Ammal V/s. Venugopala Pillai ( 41) 28 A.I.R. 1941 Mad. 831, Venkatappayya V/s. Mallayya ( 42) 29 A.I.R. 1942 Mad. 410, Namberumal Chetti V/s. Ramayya Naidu ( 42) 29 A.I.R. 1942 Mad. 602, Muthiah Chettiar V/s. Rayalu Aiyer, Nagaswami Iyer & Co. ( 44) 31 A.I.R. 1944 Mad. 98, A. S. NO. 328 of 1941, A. S. NO. 35 of 1941 and S. A. NO. 1595 of 1942. It seems to us that the decision in Swaminatha Odayar v. Srinivasa Aiyer ( 39) 26 A.I.R. 1939 Mad. 942 may require reconsideration in the light of subsequent decisions. As the amount at stake in the present case is very large and the matter is one of considerable general importance we refer the following question to a Full Bench : "Whether the decision in Swaminatha Odayar V/s. Srinivasa Aiyer ( 39) 26 A.I.R. 1939 Mad. 942 is correct in that it holds that a person cannot be assessed unless the assessment is made in his name in the municipal assessment register." The papers will be placed before the Honourable the Chief Justice. Opinion of the Full Bench

(3.) Proviso C to Section 3(ii), Madras Agriculturists Belief Act, 1988, states that a person shall not be deemed to be an agriculturist if he has, within the two years immediately preceding 1 October 1937, been assessed to property or house tax in respect of buildings or lands, other than agricultural lands, under the Madras District Municipalities Act, 1920, or under any of the other Acts specified, if the aggregate annual rental value of the lands and buildings, whether let out or in the occupation of the owner, is not less than Rs. 600. In Swaminatha Odayar v. Srinivasa Aiyer ( 39) 26 A.I.R. 1939 Mad. 942 a Bench of this Court (Burn and Stodart JJ.) held that a person cannot be deemed to be lawfully assessed within the meaning of this proviso unless his name has been inserted in the assessment register as the owner of the property. The correctness of this decision has been doubted and the doubt has led to this reference. The parties in Swaminatha Odayar V/s. Srinivasa Aiyer ( 39) 26 A.I.R. 1939 Mad. 942 were the same as the parties in the present case and the facts were the same. The respondent owns immovable properties at Mannargudi and Tiruvarur which are assessed, and for many years have been assessed, to property tax. The respondent is a minor represented by his mother Minakshi. The former owner of the Tiruvarur properties was one Balasubramania Odayar, who died over 40 years ago. As the result of obvious negligence in the office of the municipality his name remained in the assessment register as the owner of the Tiruvarur properties. The evidence in the ease however leaves no room for doubt that the municipal officials knew who was the actual owner of the properties at all times material. In respect of the tax payable for the first half of the year 1935-36 a notice was sent to Minakshi and since then the tax has been paid by the tenant of the properties under her instructions.