VALIA MALIYAKKAL SAYID MUHAMMAD JIFFIRI ATTAKOYA THANGAL Vs. SAYID MUHAMMAD BIN ALABI AYIDROSS KUNHIKOYA THANGAL

JUDGEMENT

(1.) The respondent's predecessors-in-title obtained an inam grant from Tippu Sultan. The grant was confirmed in 1866 at the time of the Inam Settlement. The validity of the grant had, however, been recognised for many years before that. The land in respect of which the respondent holds the grant is situate in Malabar. In 1932 he filed a suit in the Court of the District Munsif of Quilandy to recover from the appellants, who are in possession, a sum of Rs. 450-4-11 made up of land revenue and amounts paid by him in respect of land cess and education tax over a period of 12 years. He also claimed interest. With regard to the land cess and education tax the respondent's case was that he had been compelled to pay the amounts to Government and therefore Was entitled to recover them from the occupiers of the land. The appellants denied that the respondent was entitled to recover anything from them. The District Munsif held that the respondent had the right to recover the amount claimed for land revenue with interest and also to the amount claimed in respect of land cess, but in that case without interest. He rejected the claim so far it related to the education tax. An appeal and a cross- appeal were file d in the Court of the District Judge, North Malabar. The District Judge held in favour of the respondent on all the points and decreed the suit. The appeal before us is, from the decree of the District Judge. The learned Advocate for the appellants concedes that the respondent is entitled to recover from them the amount claimed in respect of land revenue, but he challenges the findings of the District judge or the other points. The questions which the Court is called upon to decide are therefore these: - (1) Whether the respondent; is entitled to interest in respect of the amount of the; arrears of laridrevenue; (2) Whether anything is recoverable from the appellants in respect of land cess and education tax; and (3) if they are liable in respect of land cess or for education tax what is the period of limitation?

(2.) It is clear that the respondent is not entitled to interest in respect of the amount due for land revenue unless the case falls within the proviso contained in the Interest Act, The inam grant does not fix the date when the land revenue is to be paid to the inamdar and no notice in writing was given to the appellants that interest would be claimed in default of payment. The proviso to the Interest Act, however, leaves it open to the Court to award interest where a Court of Equity would recognise the claim. This was the construction placed upon the proviso by the Privy Council in the recent case of the Bengal Nagpur Railway Co., Ltd. V/s. Ruttanji Ramji (1938) 1 M.L.J. 640 : L.R. 65 I.A. 66 : I.L.R. (1938) 2 Cal. 72 (P.C.). In delivering the judgment of the Board, Sir Shadi Lal quoted the observations of Lord Tomlin in Maine and New Brunswick Electrical Power Co. V/s. Hart (1929) A.C. 631, where Lord Tomlin said: In order to invoke a rule of equity it is necessary in the first instance to establish the existence of state of circumstances which attracts the equitable jurisdiction, as, for example, the non-performance of a contract of which equity can give specific performance.

(3.) In Drax, In re : Savile V/s. Drax (1903) 1 Ch. 781, the Court of Appeal recognised that interest was payable when a settlement or contract contained a provision that a certain sum should be charged oh land and be paid at a fixed time. In the case before us neither of these conditions is fulfilled. It is true that the trial Court and the District Court considered that the respondent was entitled to a charge and this finding has not been expressly challenged by the appellants in their memorandum of appeal. I shall state presently what we consider should be the form of the decree, but for the purposes of deciding whether interest is recoverable or not we have to consider whether a Court of Equity would grant it.