In Re: N. Duraiswami Aiyar

Venkatasubba Rao, J.—The question raised in this batch of second appeals is, what is the right principle to be applied in regard to valuation

of suits filed u/s 112 of the Madras Estates Land Act? Chapter VI of that Act deals inter alia with the sale of the ryots'' holdings for arrears of rents

due. S. Ill provides that when an arrear is not paid within the revenue year in which it accrued due it shall be lawful for the landholder to sell the

holding or any part thereof in the prescribed manner. Section 112 then enacts that it shall be incumbent on the landholder intending to avail himself

of this power, to serve a written notice on the defaulter, first, stating the amount due and secondly informing him that in default of his paying the

amount or of his filing a suit contesting the landholder''s right to sell within the time specified, the holding or a part thereof, as the case may be, will

be sold. The present appeals arise out of suits filed by the tenants concerned under the last mentioned section. In both the Courts below, the

tenants were successful and the second appeals here have been filed by the landholder. The question is, what is the proper court-fee payable on

these appeals? The landholder contends in the words of the office note, that:

The value of the subject-matter is not more than the annual rent the recovery of which is resisted.

And on that basis he has paid an ad valorem court-fee in each appeal. As, however, a different view prevailed in Aiyaswami Aiyar v. District

Board, Tanjore (1929) 57 M.L.T. 510 : ILR 52 Mad. 972 the question was referred to one of us, Venkataramana Rao, J., who, in view of the

importance of the point raised, has directed the matter to be placed before a Bench. It is thus that these cases have come to be heard by us.

The only case in which this question directly arose is Aiyaswami Aiyar v. District Board, Tanjore (1929) 57 M.L.T. 510 : ILR 52 Mad. 972

decided by Anantakrishna Aiyar, J. The learned Judge there held that in the case of a suit u/s 112:

It is not possible to estimate at a money value the subject-matter in. dispute

And that therefore Article 17-B of the second schedule applies. In arriving at this decision, he relied by way of analogy, upon certain three

classes of cases, where in the circumstances existing in them, it was held that the subject-matter was incapable of valuation. The reasoning of the

learned Judge seems with great respect far from convincing; on the contrary, there is another case decided by Ananta-krishna Aiyar, J., himself,

which on account of its resemblance to the present case, may be said to have a greater bearing on the point raised. The question raised was, what

was the proper court-fee payable in respect of suits filed u/s 95 of the Madras Estates Land Act? That section, like Section 112(the provision with

which we are dealing) also occurs in Chapter VI of the Act and refers to a suit by the ryot to contest the distraint effected by the landholder. It

provides that a notice shall be served on the defaulter, requiring him either to pay the amount demanded or to institute a suit contesting the distraint

within the specified period. It will be seen that these two Sections 95 and 112 occur not only in the same chapter, but have been enacted to serve

the same purpose and prescribe similar, if not identical, procedure. The learned Judge has held, that where suits are filed u/s 95, it is possible to

estimate the subject-matter in dispute; if that conclusion is right (and in our opinion it is), it is reasonably clear that the same view should prevail in

respect of suits u/s 112.

The notice mentioned in Section 112 is required to state, in the first place, the amount due for arrears which amount, it is obvious, represents

both the extent of the tenant''s alleged liability and the measure of his interest in the intended suit. The learned Judge observes that in a suit to be

filed by the frenant, he may direct his attack not against the quantum of the rent claimed, but against the sufficiency of the service of notice and

therefore concludes that the amount of rent cannot be the criterion. With great deference there is some fallacy which seems to underlie this

reasoning. From the tenant''s point of view, what he contests is the landholder''s right to sell for the arrear claimed, and if he succeeds, his

opponent''s right lo proceed with the intended sale, comes for the time being, to an end--on what particular ground the tenant makes good his

contention, being for this purpose, a matter of no consequence. As observed in Bunwari Lal v. Daya Sunker Misser (1909) 13 C.W.N. 815, the

word used in Article 17-Bis ''estimate'', which involves the ""idea of approximation "", that is to say, all that is contemplated is that the subject-matter

is capable of being approximately, and by no means accurately valued. Anantakrishna Aiyar, J., observes, as a further argument in support of his

conclusion, that in the case of a taxing statute a construction most beneficial to the subject should be adopted. This canon has obviously no

application. In the case decided by the learned Judge Vaithilinga Aiyaswami Aiyar Vs. The District Board of Tanjore, the landholder was

interested in arguing having regard to the amount of the fee payable on the ad valorem basis that Article 17-B applied; in the present cases he is

interested in putting forward the very opposite of that contention, as the court-fee which he would be liable to pay, were that article applicable

would be greater than the amount payable ad valorem on the annual rent claimed.

In the result, we decide that the contention of the landholder''s counsel must prevail. The learned Government Pleader, we may observe, has

supported that contention stating frankly that his desire is to obtain a considered ruling.

We think that as between the Government and the Government Pleader Rs. 75 for the whole batch would be the proper fee.