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Judgment
Wadsworth, J.—This civil revision petition arises out of an application u/s 15 of Act IV of 1938. There was a previous application under
which the petitioner was permitted to make a deposit of the rent for the Malabar year corresponding to fasli 1347 at the same rate as that now
deposited. I am informed that an appeal was filed against that decision and rejected. The petition recites that the purappad of the holding was
originally fixed at Rs. 62-7-0, of which Rs. 49-10-0, was payable to the respondent''s tavazhi (that is the tavazhi of the present petitioner) and the
balance to the Kolai tarwad and that the three items assigned to the petitioner from the original kanomdar have to pay the amount of Rs. 49-10-0
payable to the respondent''s tavashi. In the counter-affidavit the contention is raised that the deposit should be of the rent for the entire holding.
There was no evidence at all and the judgment of the lower Court is concerned mainly with a contention as to the date of the deposit. I am asked
to infer in revision that this deposit is invalid because it is a deposit only of the appellant''s share in the rent of the holding. The position where out of
an original holding three items have come into the hands of an assignee and the rent of those three items has come to be payable not to the tarwad
which was originally the landholder but to a sub-group of that tarwad, stands on a different footing from the position when the landholder''s interest
remains undivided and there is an assignment of part of the tenant''s interest. In the latter case we have held that the assignee could get the rent
scaled down only on paying the rent of the entire holding. Where, however, there has been a division of the landholder''s interest corresponding
with the division of the tenant''s interest, the question whether the tenant could get the rent scaled down on payment only of the rent due to the
person entitled to the rent of those items assigned to him must depend to a great extent on the facts. '' If there has been an attornment by the tenant
to the sub-divided landholder, clearly the ''tenant would be entitled to claim relief as against the person to whom he actually paid his rent on the
deposit of the rent for one year. If in feet the rent of the holding was still payable to the original landholder who had to make over part of the rent to
the sub-divided group, presumably the scaling down could only be ordered on payment of the full rent of the holding. The facts, however, have not
been clearly established and it does not appear that the contention now urged was supported by the necessary evidence in the lower Court.
There is, however, another contention with reference to which it appears that the materials before the learned District Munsif were not sufficient
to support the order. It appears from the petition that a chalan for the deposit of the amount was asked for and obtained on the 30th September,
1939, which was the last day on which the deposit could be made with reference to Section 15 of the Act. The amount was actually deposited in
the bank only on the 2nd October, 1939. The lower Court relies on the decision in R. Gopalakrishna Pillai Vs. M. Kunjithapatham Pillai and
Others, and treats the deposit as having been made, not on the 2nd October, but on the 30th September. The decision quoted would justify the
learned District Munsif''s conclusion if it was proved that the applicant was prevented from making the deposit on the 30th September by some
default on the part of the treasury officer or the bank or by some delay on the part of the Court in issuing the chalan so as to prevent the applicant
from making the deposit in time. These are matters which have to be proved by evidence. I do not think it right to set aside the lower Court''s
order for want of the evidence when the order itself may in fact be correct. The revision petition is allowed and the application is remanded to the
lower Court for fresh disposal after taking evidence on the question whether the circumstances in which the deposit was made justify the inference
that it would have been made on the 30th September, but for the default of the Court or the treasury or the bank. Costs to abide by the result.