S SRIRAMA RAJA Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL, NOW THE PROVINCE OF MADRAS, REPRESENTED BY THE COLLECTOR OF CHINGLEPUT DISTRICT

JUDGEMENT

(1.) The appellants are the shrotriemdars of Pudupakkam in the Chingleput district. Their binds are watered from a tank at Padur. Padur is a Government village and shares with Pudupakkam the water of this tank. In other words, the tank is owned jointly by the appellants and by the Government. In 1913 the tank was in need of repair and the Collector caused an estimate to be prepared. The shrotriem ayacut watered by this tank measures 454.10 acres and the Government ayacut measures 554.94 acres. The total cost, according to the estimate, was Rs. 3,630, and the appellants share came to Rs. 1,633-9-10. On the 20 November, 1913, the Collector wrote to the appellants stating that the proportionate share payable by them in- respect of the cost of the repairs to the tank was Rs. 1,633-9-10, and a copy of the estimate was sent to them. They were requested to pay the amount in the treasury and if they had any objections to offer to state those objections within a month. The appellants replied to this letter on the 17 December, 1913. They did not object to the estimate or to the work being carried out, but they objected to making any contribution to the cost of the repairs. They stated that repairs to the tank had been undertaken twice before and they had not been called upon to pay anything. They also considered that as they had paid the water cess for the second crop which for the previous ten years averaged from Rs. 60 to Rs. 70 it was unjust of the Government to make any demand in connection with the repairs which were to be undertaken. On the 27th. August, 1914, the Collector addressed a further communication to the appellants. This document has not been exhibited, but it apparently required them to pay the Us. 1,633-9-10. On the 17 September, 1914, the appellants replied to this further demand on the lines of their letter of the 17 December, 1913. The repairs were completed by the month of April, 1918, but no further demand was made upon the appellants until the 13 March, 1934. The matter had apparently been overlooked in the meantime.

(2.) On the 30 October, 1935, the Government instituted in the Court of the District Munsiff of Chingleput the suit which has given rise to this appeal, claiming the payment of the sum of Rs. 1,345 which was the proportionate share of the appellants of the actual cost of the repairs. The claim of the Government was not subject to the law of limitation and the District Munsiff heard and decided the case on its merits. The District Munsiff considered that the appellants were liable and consequently decreed the suit. The appellants appealed to the District Judge who concurred in the judgment of the District Munsiff on the ground that the case was governed by the decision of "this Court in Saptkarishi Reddiar V/s. Secretary of State for India (1915) 28 M.L.J. 384. Thereupon they appealed to this Court. The case came before Kuppuswami Ayyar, J., who considered that there were certain decisions of this Court in conflict with the judgment relied on by the District Judge and therefore it was desirable that the case should be heard by a Bench,

(3.) The facts in Saptharishi Reddiar V/s. Secretary of State for India are identical with, the facts of this case. There, Ayling and Tyabji, JJ., held that the defendants who owned a tank jointly with the Government were liable to contribute to the cost of repair by reason of the provisions of Section 70 of the Indian Contract Act. The Court recognised that the provisions of this section, are wider than the English law. Under the English law the defendants would not be liable, but the Court could only have regard to the Indian statute law and the section made them liable to contribute.