MUSAFKANNI RAVUTHAR Vs. DORAISINGAM

JUDGEMENT

(1.) The finding of the Subordinate Judge is accepted. The finding is to the effect that the wet lands are divided between the several sharers and each sharer is in enjoyment of his specific share. As to the dry lands, half of them are enjoyed by the sharers as tenants-in-common by being held through permanent lessees and the other half similarly through occupancy tenants. The sharers are not in physical possession of the dry lands and practically there is little chance of their getting into physical possession. They have to collect the rent and divide it according to their respective shares. It is also clear that at the time of the inam register, Ex. IV, that is, in 1864, all the lands were undivided and were being held jointly. The poruppu for the chatram portion must have been paid jointly by all the sharers though it was separated from the dues on the dharmsanam portion. The question that now arises is what is the principle of law applicable to the liabilities of the shareholders?

(2.) We start with the fact that the original agraharamdars were all Brahmins and there is none now among them and even in 1864 most of them, perhaps all relating to the chatram portion, were alienees. It is clear now that they are all alienees. The liability of the assignee of a lessee is primarily by reason of the privity of estates: see Monica Kitheria V/s. Subraya Hebbera [1907] 30 Mad. 410 Each sharer is therefore liable at least to the extent of his share. The further question is whether they are jointly liable and not merely severally liable for their respective shares. No doubt, in 1861, the payments must have been made jointly. But at that time they were tenants-in-common and were in joint possession and have, as will be shown lower down, been jointly liable for the poruppu. On this ground, they must have paid the poruppu been jointly, but since then the wet lands have been divided into separate shares and there is no joint possession. The petitioner's vakil, Mr. Sesha Iyengar, contends that even as to the dry lands they are not jointly and severally liable. He relies on certain observations in Venkatasubramniam V/s. Rajah of Venkatagiri [1920] 11 M. L. W. 523 specially the observations of Krishnan, J. The point was not actually decided in that case. The contention based on the fact that some of the defendants were assignees was not raised there in the first Court and in the High Court the decision proceeded on the assumption that all the defendants were the heirs of the original lessees. The observations of Krishnan, J., in favour of the assignees were therefore obiter dicta. When we examine the cases referred to, none of them is quite conclusive, though the inclination in these cases is in favour of the assignees. In the first English case Gamon V/s. Vernon [1679] 2 Lev. 231 the suit itself was for the proportionate share. In the other case Stevenson V/s. Lambard [1802] 2 East 575 the defendant was evicted from a certain share by the paramount title of a prior lessee and it was held that the rent may be apportioned. Both these two cases were discussed at length by Green, J., in United Diaries V/s. Public Trustee [1923] 1 K. B. 469 He is of opinion that the matter was not really decided by the English authorities. He is inclined to agree with the opinion of Kenny, J., in Dooner v. Odium [1914] 2 I. R. 441 It is also the trend of opinion of the text writers: see Foa on Landlord and Tenant. 469. In Jagan Mohan Sarkar V/s. Brojendera Kumar Chakravarthi A. I. R. 1925 Cal. 1056 B. B. Ghose, J., seems to take the same view. The decision in Kunhi Sou v. Molluli Chathu [1915] 38 Mad. 86 deals with apportionment in the matter of time and it is not clear that the Judges were discussing the case of tenants-in-common in joint possession. I adopt the view of Green, J., in United Diaries V/s. Public Trustee [1923] 1 K. B. 469 and that of Kenny, J., that is, if the assignee of a share holds his share in physical severalty he is separately liable for his share and if they are jointly in possession as tenants-in-common of the whole (even if such possession is through sub-tenants) they will be jointly liable though it will be open to them to cut down their liability by division. The acceptance of joint liability in 1864 is attributable to this principle and would not prevent the assignee-tenants from cutting down their liability by a later division.

(3.) Mr. Kutti Krishna Menon for the respondents contends that as a specially well-known incident of the agraharam tenure in Southern India all are jointly and severally liable even if there is division. He referred to several cases such as Zamindar of Ramnad V/s. Ramamany Ammal [1879] 2 Mad. 234 Sundaram V/s. Sankara [1886] 9 Mad. 334 and Ellaiya V/s. Collector of Salem 3 M. H. C. R. 59. In some of these cases it is not clear that the tenants were assignees. In none of them the point arose directly and the point seems to have been assumed or conceded without any argument. It cannot be said by reason of cases of this kind that a customary incident has been established in Southern India modifying the general principle of law. I must therefore hold that each defendant is only separately liable in respect of the wet lands in his possession. The shares of the defendants are already known. As to the dry lands they are jointly liable. The only question that has to be determined now is: What is the proportion of the poruppu payable on the wet lands and on the dry lands?