GOVINDA KRISHNA YACHENDRULO VARU BAHADUR Vs. VENKATA SUBBIAH

JUDGEMENT

(1.) The plaintiff-appellant, the Rajah of Venkatagiri claimed from the defendant-respondent the holder of an inam in his estate a small sum of money amounting to Rs. 5-9-2 as estimated in the memorandum of second appeal in respect of a cess called. "sivunimera" for faslis 1329 to 1332. The defendant contended that he is not liable to pay this cess as it is only a. voluntary payment. The appellant then stated that it was not open to the defendant to raise this plea in view of the decision in O.S. No. 122/18 which would operate against him as res- judicata. The lower Courts dismissed the plaintiff's claim on the ground that sivunimera was shown to be a voluntary payment and that the decree in O.S. 122/18 obtained by the plaintiff against the defendant's father does not operate as res judicata against the defendant.

(2.) It is argued before me that, evert though sivunimera is a voluntary payment, the respondent is now precluded from raising the plea on the ground of res judicata by virtue of the decision in O.S. 122/18. The respondent raises a preliminary objection that no second appeal lies in this case as the appellant's suit is of a small cause nature for an amount which does not exceed Rs. 500. Two points for my decision therefore are: (1) whether the suit is of a small cause nature and (2) whether the plea of res-judicata is sustainable.

(3.) Point 1. It is argued on behalf of the appellant that the present suit is excepted from the cognisance of the Court of Small Causes by virtue of Clause 13 Schedule 2, Small Cause Courts Act. This clause refers to a suit to enforce payment of the allowance or fees respectively called malika or cess or other dues when the cess or other dues are payable to a person by reason of his interest in any immovable property as hereditary office or any shrine or religious office. If the cess called sivunimera is payable by the respondent to the appellant by reason of his interest in immovable property, then clearly a Court of Small Causes cannot take cognizance of the suit. It has been held by this Court that the cess or dues contemplated in Art. 13 are payments which a person is entitled to as representing his interest in a certain immovable property and not because he possesses some interest in immovable property: see Maharajah of Vizianagaram V/s. Veeramma [1913] 36 Mad. 18, Krishnaswami Naidu V/s. Sriramulu Naidu . In this case it was conceded in the lower Courts that sivunimera is a voluntary payment. It appears to me that this concession means that sivunimera is not paid by the respondent to the appellant by reason of his interest in immovable property. If the claim is based on some interest in immovable property, then prima facie, it will be a claim binding on the respondent. As the payment is purely a voluntary one I must hold that it does not come within the purview of Art. 13, Schedule 2. I must therefore uphold the preliminary objection. This is enough to dispose of this second appeal, but as the question of res judicata was also argued before me, I would very briefly consider that plea also.