SRI RAJAH KAKARLAPUDI VENKATA SUDARSANA SUNDARA NARASAYYA GARU Vs. SRI RAJAH KAKARLAPUDI BUTCHI KRISTNAM RAJU GARU

JUDGEMENT

(1.) These second appeals arise out of six suits instituted by the respondents the registered proprietors of the Panduru Mallavaram estate for recovery of the proportionate peishcush for faslis 1327 to 1338 in respect of the lands belonging to the appellants in Mallavaram, and the material facts are that the villages of Panduru and Mallavaram originally formed part of the Uratla estate. The suit lands were gifted to the predecessor-in-title of the appellants by the proprietrix of Uratla by Ex. XI the deed of 1859 and the deed is silent regarding separate registration or payment of proportionate share of the peishcush. The villages of Panduru and Mallavaram were transferred to the predecessor-in-title of the respondents by Ex. A the deed of 1875 and they were separately assessed and registered as one estate in the name of the transferee in the same year. The respondents purchased the estate in 1919 and applied to the Collector some time later for separate registration and assessment of the lands of the appellants in Mallavaram. The application was opposed and the parties were referred to a Civil Suit. Suits were then instituted by the respondents and they were decreed by the District Munsiff of Yellamanchili. The decrees were confirmed by the Subordinate Judge on 25th July, 1928 and the suits out of which these second appeals arise were filed in 1929 for recovery of the proportionate peishcush in respect of faslis 1327 to 1338. They were resisted on various grounds but decreed by the trial Court and the decrees were confirmed by the District Judge. Hence these second appeals and it was argued first that in view of Section 58 of Act II of 1864 which enacts that no Court of civil judicature shall have authority to take into consideration or decide any question as to the rate of land revenue payable to Government or as to the amount of assessment fixed or to be hereafter fixed on the portions of the divided estate} the Civil Court has no jurisdiction to apportion the assessment as between the co-sharers until the respective portions are separately registered and assessed under the provisions of Act I of 1876. But the respondents do not ask for the assessment of the land revenue payable by the appellants to the Government and as pointed out by the Chief Justice in Muthammal V/s. Secretary of State for India , which was relied upon by the appellants, the apportionment of the assessment as between two co-owners does not involve any question as to the amount of assessment as fixed or to be fixed by the Government. That a co-sharer of a revenue-paying estate who pays the whole revenue in order to save and does so save the estate from liability to be sold by the Government for realising the revenue is by operation of law entitled to a charge upon the share of each of his co-sharers for the realisation of the latter's share of the revenue as between the co-sharers, was laid down by the Full Bench in Rajah of Vizianagaram V/s. Rajah Setrucherla Somasekhararaz (1902) 13 M.L.J. 83 : I.L.R. 26 Mad. 686 (F.B.), and as pointed out in Amman Pariyari V/s. Pakran Haji (1912) I.L.R. 36 Mad. 496, even before the amendment of Secs.82 and 100 of the Transfer of Property Act, the burden of paying the land revenue is common to the parties whose lands are charged with the payment of the whole revenue. The liability inter se of the co- sharers of the common burden is not dependent on its apportionment by the Government, and the question admits of no doubt after the amendment of Secs.82 and 100 of the Transfer of Property Act. Further the Revenue Court is not competent to apportion the liability apart from or prior to separate registry of the lands, and this can only be done by the Civil Court. It follows therefore that Section 58 of Act II of 1864 is no bar to the Civil Court apportioning the liability inter se as between the co-sharers of the common burden and the objection to the jurisdiction of the Civil Court is untenable.

(2.) It was argued next that on the terms of Ex. XI the deed of gift the lands of the appellants are not chargeable with any portion of the peishcush but the deed doesnot exempt the donee from payment of any part of the land tax assessed on the entire estate nor does it postpone his liability to pay his share of the peishcush until separate registry of his portion as in Sri Sri Sri Chandra Deo V/s. Srinivasa Charlu . In fact the deed is silent on the point and in the absence of a contract to the contrary the sharers are liable to contribute rateably. The right of the respondents to separate registration of the lands of the appellants has since been upheld by the High Court and Ex. A the transfer in favour of the predecessor of the respondents has no bearing on the question. There was no contract to the contrary between the parties or their predecessors-in-title, and it follows that the appellants are liable to contribute rateably.

(3.) It was contended next that the liability should be fixed with reference to the peishcush of Mallavaram village in which the lands of the appellants are situate but both the villages are registered as one estate and the liability has to be fixed with reference to the charge on the entire estate.