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Judgment
Wadsworth, J.—This petition has been referred to the High Court under Rule 59 of the Madras Agency Rules. It arises out of an application
filed u/s 19 of Madras Act IV of 1938 to scale down a mortgage decree. The petitioners are mokhasadars of an estate situated partly in the
Agency and partly in the plains. In 1895, the first petitioner''s brother mortgaged the greater portion of the estate to the respondent bank for Rs.
20,000 and some two years later he executed a further mortgage over the same properties for Rs. 3,500. In 1907, a suit was filed in the Court of
the Subordinate Judge of Vizagapatam on the two mortgages seeking to realise the security so far as it was situated in the plains. The suit was
decreed and in execution of the decree the portion of the hypotheca situated in the plains was sold for Rs. 50,100. This sale was confirmed on
27th March, 1923. This sale left a considerable balance under the mortgage decree and in 1923 a further suit O.S. No. 95 was filed in the Agency
Court to enforce the mortgages against the portion of hypotheca situated in the Agency tracts. This suit was decreed in 1926, the amount of the
decree being Rs. 79,624 after giving credit to the amount realised by the sale under the decree of the Subordinate Judge of Vizagapatam. An
execution application was filed in 1939 under this decree and in resistance to that execution the petitioners filed an application u/s 19 of Act IV of
1938. When this application first came on for trial the Agency Court held that the petitioners were agriculturists, the only evidence to the contrary
then available being that they paid Rs. 63 as kattubadi on the portion of the mokhasa situated within the Agency District. After the application had
been ordered, the respondent came to know that the applicants were still entitled to a certain area of the mokhasa situated in the plains which was
not bound by the mortgage decree and that in respect of this area kattubadi was payable which if added to that payable in the Agency District
would exclude the applicants from the benefits of Act IV of 1938 by the application of proviso D to Section 3 (ii) of the Act. They therefore
applied to the Agency Courts alleging that they had now access to documents which were not available when the matter was previously heard and
requesting the Agency Court to review its judgment. This petition was allowed, an opportunity being given to both sides to adduce further evidence
on the qualification of the petitioners as agriculturists. As a result of this further hearing, the Agency Court came to the conclusion that the
petitioners were landholders of an estate or portion thereof in respect of which more than Rs. 100 was paid as kattubadi. Various contentions have
been raised before us. Firstly it is contended that the Agency Judge had no power to review his own decision. This contention cannot be sustained
in the light of Rule 54 of the Madras Agency Rules whereunder the Agent may for sufficient cause review his own judgment or order. It cannot be
denied that the discovery of fresh and important evidence which was not available to the party at the time of the previous disposal, is a sufficient
cause for review. Further it is contended that the criterion for the application of proviso D to Section 3 (ii) is not the amount of kattubadi which
ought to be paid but the amount of kattubadi which actually is paid; and that as the petitioners appear to have successfully evaded payment of
kattubadi in respect of the area appertaining to the estate in the plains which is still in their ownership, the kattubadi payable on this portion has to
be excluded in calculating their liability for the purpose of proviso D. It seems to us that this contention should be repelled. We held in Sree Raja
Velugoti Navaneetha Krishna Yachendra Bahadur Varu Vs. Sirigiri Ramanujulu Chetty by next friend Irla Pullaiah Chetty, that the application of
proviso D to the landholder of a portion of an estate would be governed not by his theoretical liability jointly and severally with his co-sharers to
pay the whole of the quit rent regardless of the extent of his interests therein, but by the actual proportionate liability having regard to the extent
which the individual sharer owns in the estate. Applying this criterion, the amount of kattubadi paid by the petitioners would be determined by the
proportion which the estate in their hands bears to the whole of the estate. It seems to us preposterous to contend that if in a particular year or
series of years the landholder manages to evade payment of the lawful kattubadi he is not the landholder of an estate ""in respect of which kattubadi
is paid."" The criterion must not be the actual money which the Government or superior landholder succeeds in recovering but the proportionate
share which the individual owner of a part of the estate has to pay in respect of the share which he owns. It is contended that we should interfere
with the decision of the trial Court because the proportionate share of the kattubadi payable by the petitioners has been calculated on the basis of
the rental value and not on the basis of the capital value of the portion in their enjoyment. It is no doubt true that if the matter came up in an
application for separate registry, the criterion for apportionment would be the ""actual value"" of the different portions. But even this actual value
would have to be fixed on a variety of considerations one of which would doubtless be the rental value. The lower Court had to determine what
was the proportionate kattubadi payable by the petitioners with reference to the materials before it. We are satisfied that a fair apportionment has
been made on the basis of those materials and there are no grounds which would justify us in interfering with the trial Court''s conclusion. In this
view we dismiss the petition with costs with an advocate''s fee of Rs. 50.