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Judgment
Govinda Menon, J.—This is an appeal against the dismissal of O. S. No. 62 of 1944 in the Court of the Subordinate Judge of Nellore on
the ground that the suit was barred under Order 2, Rule 2, Civil P. C. as well as by limitation and further that even if there was no bar, the plaintiff
cannot maintain the suit against the present Zamindar of Chundi in respect of the estate in his possession and that the debts contracted by the
previous zamindar were not for purposes binding on the estate.
In O. S. No. 106 of 1936 on the file of the Subordinate Judge''s Court, Nellore, the appellant claimed to recover a sum of Rs. 8031-4-9 under
six headings of liability incurred by the defendant in that suit and which were payable to the appellant. They consisted of a sum of Rs. 2000 claimed
as damages for wrongful dismissal of the appellant from his position as Dewan of the Chundi estate in accordance with a contract dated 31-12-
1935. The second item was a sum of Rs. 1566-9-4 due to the appellant under two promissory notes which had been got endorsed in his favour by
him for collection, the promissory notes being one for Rs. 1250 dated 27-12-1935 and another for Rs. 250 dated 30-12-1935 executed by the
then zamindar to one Seshamma. The third item of the claim was a sum of Rs. 2627-6-3 due under two promissory notes dated 31-12-1935
executed by the zamindar in favour of one Sambayya for Rs. 1670 and one Sambrajyamma for Rs. 800. These promissory notes were also
endorsed over for collection in favour of the appellant. The fourth item was a aum of Rs. 1155-4-5 due on a promissory note dated 7-1-1936 by
the same zamindar in favour of Y. Purushotham for Rs. 1100. The fifth item was a sum of Rs. 207-0-9 due on a promissory note for Rs. 200
executed by the zamindar in favour of the appellant himself. The sixth and the last item was a sum of Rs. 475 being the arrears of salary due to him.
Despite the suit being contested by the zamindar, the Subordinate Judge on 19-8-1937 passed a decree for the amount claimed in the plaint after
deducting Rs. 850 out of the damages claimed. It may be mentioned that the plaintiff claimed recovery of the amount not only from the then
zamindar personally but also from the Chundi estate which is an impartible estate included in the schedule to the Madras Impartible Estates Act,
1904. Exhibit D. 3-a, the decree, directs the payment by the defendant to the plaintiff of the sum of Rs. 7181-4-9 with interest and costs. There
was no decree against the estate. The zamindar died on 4-9-1938 and as the present respondent, his son, was a minor, the Court of Wards took
charge of the estate u/s 10, Madras Court of Wards Act. The appellant claimed the recovery of this amount from the estate in the hands of the
Court of Wards and the collector passed orders, Ex. P-3 and P3-a, by which portions of the amount decreed by the civil Court were disallowed.
The claim for damages to the extent of Rs. 1150 allowed by the civil Court was approved of by the collector. So also the sum of Rs. 475 being the
arrears of salary. He disallowed the amounts due under the promissory note executed in favour of Seshamma as well as the promissory notes exe-
cuted in favour of Sambayya and Sambraj-yamma. With regard to the promissory note executed by the zamindar in favour of Y. Puru-shotham for
a sum of Rs. 1100, it was held that it cannot bind the impartible estate beyond the lifetime of the zamindar. The claim as regards the sum of Rs.
207 baaed on a promissory note for Rs. 200 being the money lent by the plaintiff for raising the attachment on the zamindar''s car was also
disallowed. The appellant thereupon filed the present suit praying for the following relief:
Declaring that the decree debt in O. S. No. 106 of 1936 on the file of the Sub-Court of Nollore less the sum of Rs. 2235-1-10 being the amount
calculated as due on the promissory note executed in favour of Seshamma, is binding and enforceable against the defendant therein and the Chundi
estate in the hands of the Court of Wards.
The answer to the claim given by the defendant was that these debts were not binding on the estate beyond the lifetime of the executant of the
promissory notes and therefore the suit was not maintainable. Various other pleas were taken in the written statement which formed the subject-
matter of as many as seven issues in the suit. As stated already, the learned Judge held that the suit was not maintainable under issues l, 4, 5 and 6.
On the question whether the auit was barred by res judicata, the learned Subordinate Judge was of opinion that since the appellant had already
filed a suit against the previous zamindar as well as the estate in his hands and since the decree passed in O. S. No. 106 of 1937 was only a
personal decree against the zamindar, the present suit was not maintainable. The question is whether that view of the learned Judge is correct or
not.
The decision in Bommayya Naickcon Ayyan v. Subramania Iyer, 46 M. L. J. 374 : A. I. R. 1924 Mad. 707 ia relied upon by the learned
counsel for the appellant as an authority which is against the view taken by tha lower Court. What happened there was this: A decree had been
obtained against the holder of an impartible estate for a sum of money due to the plaintiff in O. S. No. 714 of 1911 on the file of the District
Munsif''s Court, Dindigul. The zamindar died in 1917 and the decree was thereafter sought to be executed against the succeeding zamindar as the
legal representative of the late zamindar and against the estate in his hands. The succeeding zamindar contended that the estate in bis hands would
not he liable for the payment of that debt and also that the matter could not be proceeded against in execution. The District Munsif agreed with the
contention of the succeeding zamindar and referred the plaintiff therein to a fresh suit. But the learned Subordinate Judge in appeal held that the
matter could be decided in execution. On a further appeal to this Court, Krishnan and Waller JJ., were of the view that the decision of the
Subordinate Judge was incorrect. The learned Judges say that the question could not be decided in execution because it is one of enforcing a new
liability against the estate by proof that the debt was borrowed for the benefit of the estate. In such circumstances, the plaintiff''s remedy is to bring
a new suit and after obtaining a declaration that the debt incurred by the previous zamindar for which a personal decree had been obtained against
him, was binding on the impartible estate and the income that had accrued due from the impartible estate in the hands of the succeeding zamindar,
to apply in execution of his decree and have the same executed against the property. The reasoning of the learned Judges comes to this : that in
view of Section 4, Madras Impartible Estates Act, it cannot be said that a zamindar can represent the estate and make it liable for debts incurred
by him so as to enure beyond his lifetime. This decision was passed in December 1923 and a quarter of a century has elapsed since then. Counsel
on either side have not been able to show any authority which either accepted the principle decided by the learned Judges or dissented from their
decision. Such being the case, on the accepted notions of stare decisis we are bound to follow the Bench decision which has stood the test of time.
Learned counsel for the respondent contends that the observations which have been considered by us above in Bommayya Naiolc&n v.
Subramania Iyer, 46 M. L. J. 874 : A. I. R. 1924 Mad. 707 are unnecessary and obiter for the decision of that particular case and cannot be
followed as a binding authority. He further contends that in the present case, it would have been possible for the decree-holder to have got a
decree against the estate itself by making the previous zamindar alone a party, if he were able to show that the money was utilised for the
necessities or the benefit of the estate. The argument is that if the present plaintiff oould have got a valid decree u/s 4 and got it executed against the
estate during the lifetime of the zamindar, it necessarily follows that he having put in issue the question of the liability of the estate and the Court not
having specifically declared that it was binding on the estate, it should be deemed that the claim had been rejected by the Court on a previous
occasion, and, as such the estate now cannot be mulcted with this liability. The learned Judges in Bommayya Ayyan v. Subramania Iyer, 46 M. L.
J. 374 : A. I. R. 1924 Mad. 707, have in some way answered this contention. They have said that if the judgment creditor plaintiff is able to show
that the debt was for a sum of money borrowed for the benefit of the estate u/s 4, Impartible Estates Act, the debt would be one binding on the
Impartible Estate and the creditor would be entitled to enforce his debt as against the estate in the hands of the succeeding zamindar, They further
observed that by proving that the debt was borrowed for the benefit of the zamin-dari, the zamindari does not become the assets of the late
zamindar in the hands of the succeeding zamindar ; but the only thing that results is whether the plaintiff judgment-creditor will be able to enforce his
debt agiinat the impartible estate in the hands of the succeeding zumindar.
We are of opinion that the principle enunciated in Bommayya Naicken v. Subra-mania Iyer, 46 M. L. J. 874 : A. I. R. 1924 Mad. 707 has to
be applied to the facts of the present case. The judgment-debtor zamindar could not have represented the estate so as to make it liable beyond his
lifetime. The analogy of the manager of a joint Hindu family being sued for a debt due by him, and the family properties being made liable for that
amount cannot apply to the present case in view of Section 4, Impartible Estates Act. In the case of a joint Hindu family, if a decree is obtained
against the manager personally, the judgment-creditor is entitled to recover the same from the share of the manager by an attachment of the share
and getting it sold. But in the case of an impartible estate, the holder for the time being cannot have any share as such. All that the creditor can do is
to realise the money by appointment of a receiver for the estate or by other means known to law during the lifetime of the judgment debtor
zamindar. If he is not able to realise the money during that period and wants to enforce the liability against the estate in the hands of the succeeding
holder, in our opinion, he will have to get a declaration that the debt incurred by the previous zamindar was for and on behalf of the estate and
therefore the estate is liable. This, as held in Bommayya Naicken Ayyan v. Subramania Iyer, 46 M. L. J. 374 : AIR 1924 Mad. 7071, cannot be
decided in execution, but only by a fresh declaratory suit. We should not be understood as stating that in all respects an impartible estate bolder
cannot represent the estate in litigation. It is only where his own acts are in question and when hie borrowings are sought to be charged on the
impartible property that he cannot represent the estate, so that the debt may bind the estate beyond his lifetime. Suppose for example, there was a
dispute as regards portions of the zamindari with a rival landholder and the zamindar for the time being contests the suit and a decision either way is
passed, such a conclusion should be binding on the succeeding zamindar on the principle of res judicata ; or in other words, in all cases where the
action of the zamindar is one that could be impugned by the succeeding zamindar, it seems to us that the decree obtained against a zamin-dar who
has himself created the debt, cannot be enforced in execution against the estate after his death. The Subordinate Judge seems to think that where
an impartible estate holder incurs a debt, it is inconceivable that one suit could be filed against him based on a certain borrowing and another suit
subsequently for a declaration that the same debt is binding on tbe impartible property. This is exactly what has boon repelled in Bommayya
Naicken v. Subramania Iyer, 46 M. L. J. 374 : A. I. R 1924 Mad. 707. The distinction between the representative capacity of an impartible estate
holder for transactions entered into by him for binding the estate beyond his lifetime and that where he represents the estate in other proceedings in
which he has no personal estoppel against third parties is a real one; and wa are of opinion that Section 4, Impartible Estates Act, clearly
enunciates this view. For purpose of our present case, it has to be said that an impartible estate-holder stands on an equal footing with the manager
of a joint Hindu family even though in the case of a manager of a joint Hindu family, he has a share in the properties which can be proceeded in
execution and in the case of an impartible estate holder such a thing cannot be resorted to. Following the principles laid down in Bommayya v.
Subramania Iyer, 46 M. L. J. 374 : A. I. R. 1924 Mad. 707, we are of opinion that the suit as framed is maintainable.
It is difficult to see how Order 2, Rule 2, Civil P. C , has any application. It is not as if there are different reliefs arising out of the same cause of
action and therefore the plaintiff in the previous suit having abandoned one relief or not having obtained a decree regarding that relief, in a
subsequent suit the same relief is prayed for. We feel that the cause of action against the previous holder for the recovery of money bor-rowed by
him personally is different from the cause of action regarding the right to recover the amount from the estate because tbe monies were borrowed
for the necessities of the estate. As there are two causes of action and one of such causes of action had been put in issue in the previous suit, Order
2 Rule 2, Civil P. C., cannot be said to be a bar for a subsequent suit on different cause of action.
If the plaintiff''s cause of action to recover the money from the estate in the hands of the succeeding zamindar arises only after the death of the
previous zamindar, his suit is said to be in time under Article 120, Limitation Act, and there is no question of bar at all.
On the finding that the suit is maintain-able, the question as to how far each of the debts is binding on the estate has to be considered. Since the
Collector himself in Ex. P-3 and P. 3a, has admitted the liability regarding dama-ges for wrongful dismissal to the extent of Rs. 1160 and since the
sum of Rs. 475 being the arrears of salary also has been admitted, we need not go into that question now. With re-gatd to the promissory notes,
executed in favour of Seshamma and endorsed in favour of the plaintiff, Exs. D-5 and D-5a, and which had been disallowed as not binding on the
estate by the Collector, though that was one of the items for decision by the lower Court, here in appeal, the learned counsel for the appellant has
not chosen to argue its binding nature and has given up that part of his case. We are therefore concerned with only three items, viz., the amounts
due under the promissory notes, Ex. P-2 and P-2a, in favour of Sambayya and Sambrajyamma as well as the amount due on a promissory note
dated 7-1-1936 in favour of Y, Purushotam together with the amount on a promissory note for Rs. 200 lent by the plaintiff to the zamindar for
raising the attachment on his car. The plaintiff as P. w. 1 deposes that the previous zamindar came to his native place Kuchipudi and wanted him to
arrange for a loan for depositing in Court for setting aside a sale of a village by name Uppalappadu which had been sold under a decree of Court
for a sum of money due as maintenance to an illegitimate son of the zamindar. This was on 31-12-1935. Accordingly the plaintiff arranged for the
loans from Sambayya and Sambrajyamma by executing the two promissory notes, Exs. P-2a and P-2 on 31-12-1935 for Rs. 1670 and Rs. 800
respectively. It is seen from Exs. D-1a and D-1b, the credit and debit chitta of the Chundi estate for the year 1936, that both those amounts were
credited in the estate accounts as being borrowed for being remitted to the sub-Court is connection with the auction sale of Vuppalappadu village
oa 1-1-1936. We find that on 3-1-1936 a sum of Rs. 2437-8-0 was paid ever through one T. Lakshmayya, pleader''s clerk, for remitting in the
Imperial Bank in connection with the auction sale of Vuppalapadu in O. S. No. 9 of 1928 on the file of the sub-Court. Thus, it is clear, that the
moneys borrowed from Sarnbayya and Sambrajyamma were utilised for a necessary purpose of the estate. It is not seriously disputed that this
monies were actually used for averting the loss of Vuppalappadu from the estate. But it is contended by the learned counsel for the respondent that
the debt for which Vuppalapadu village was sold was one not binding on the estate and therefore the money borrowed for setting aside the sale
cannot be held to be binding on the estate Ex. D-6b, dated 11-9-1929 is a compromise decree between the previous zamindar and a minor by
name Radhakrishnamurthi by his mother and next friend Lakshmamma, whereby it was decreed in terms of a razinama that the minor plaintiff
should be paid a sum of Rs. 4600 by the zamin-dar. The suit arose out of a claim made by the minor on the ground that he is an illegitimate son of
the zamindar for maintenance. See plaint Ex. D-6. The zamindar''s written statement was Ex. D-6 (a). He contended that the minor''s mother was
not a permanently kept concubine and that the minor was not his illegitimate son. This suit was settled and a compromise decree passed in
accordance with the terms of the razi-nama filed in Court. The copy of the razinama hag not been made available to the Court but from the recitals
contained in EX. D-6 (b) it is clear that there was a decree against the then zamindar for a sum of Rs. 4500 though there are statements in the
decree that the minor''s mother was not the permanently kept concubine of the zamindar and that the minor plaintiff was not the illegitimate son or
dasiputhra of the then zamindar. Despite these statements in the razi-nama, there was a decree on foot of a compromise for a sum of Rs. 4500. It
is admitted that in execution of this decree, this Vuppalapadu village waa attached and sold in court auction and the amount deposited on 3-1-
1936 was to set aside the sale under Order 21, Rule 89, Civil P. C. The argument of the learned counsel for the respondent is that the decree, EX.
D-6 (b) does not amount to a bona fide compromise of a disputed claim, for in view of the Privy Council decision in Krishna Yachendra v.
Rajeswara Rao 1942-1 M. l. J. 132 : AIR 1942 P. C. 3, viz. the Venkatagiri''s case, an illegitimate son of an impartible estate-holder cannot claim
maintenance out of the estate at all. Their Lordships held in the above case following an earlier decision of the Judicial Committee in (1941) 9 ITR
695 (Privy Council) , that an illegitimate son of an impartible estate holder is not a member of the joint family; nor is he entitled by custom to any
allowance or maintenance under the Hindu law. This being the law, Mr. Umamaheswaram contends that the compromise decree directing the
payment of Rs. 4500 to the minor Badhakrishnamurthi, even if he happened to be an illegitimate son of the zamindar, is not a legitimate claim
binding upon the estate. It is further contended that since EX. P-2 and P-2a do not make any mention of the fact that the monies borrow- ed
thereunder were utilised for being deposited in Court, it cannot be safely inferred that they were so utilised. According to the learned counsel, in the
promissory note, Ex. D-5 regarding which there is no claim now in appeal, the zamindar makes specific mention that the money was borrowed for
being deposited in Court. But in view of EXS. D. 1a, D. 1b and D. 1c, which are to the effect that these two amounts of Rs. 1670 and Rs. 800
were credited in the zamindar''s account and practically contemporaneously an equivalent amount was given to a pleader''s clerk for depositing in
Court to avert the sale, we are of opinion that the non-mention of the purpose in the promissory notes is a matter of no consequence at all. What is
to be seen is whether these monies were borrowed for a necessary purpose of the estate or whether the estate had benefit of it.
Though according to the Venkatagiri''s case, 1942-1 M. L. J. 132 : A. I. R. 1942 P. C. 3 and the decision which it followed, viz., (1941) 9 ITR
695 (Privy Council) , an illegitimate son of an impartible estate holder ia not entitled to maintenance out of the estate, still, the prevailing view prior
to these decisions in the case of an ordinary partible joint family governed by the Mitakshara was that the illegitimate son of a Sudra by a
continuous concubine has the status of a son, and though he is not entitled to a partition, he is entitled as a member of the family, to maintenance
out of the joint family property in the hands of the collaterals with whom the father was joint. It was, therefore, a matter of belief in legal circles that
the proposition laid down in AIR 1931 294 (Privy Council) , was applicable to an impartible estate as well at the time O. S. No. 9 of 1928 was
filed by the minor against the previous holder of the estate. We have, therefore, to see whether u/s 4, Impartible Estates Act, the borrowing by the
zamindar for paying off the compromise decree debt due to the so called illegitimate son was a justifiable necessity, the liability for which can be
fastened on the estate. If according to the view which prevailed before the decision in the Yenkatagiri''s case 1942-1 M. L. J. 132 : A. I. R. 1942
P. C. 3, rightly or wrongly an impartible estate holder is bound to maintain his illegitimate sons out of the estate, then there can be no doubt that the
borrowing from Sambayya and Samb-rajyamma could be justified. There has been a good deal of discussion about the interpretation to be put
upon Section 4, Impartible Estates Act. Mr. V K. T. Chari contends that with regard to the binding nature of a debt borrowed by an impartible
estate holder, Section 4 does not make any difference between such a holder and the manager of a Hindu family not being the father or
grandfather. Section 4, Impartible Estates Act runs ag follows:
The proprietor of an impartible estate shall be incapable of alienating or binding by his debts such estate or any part thereof beyond his own
lifetime unless the alienation shall be made, or the debt incurred, under circumstances which would entitle the managing member of a joint Hindu
family, not being the father or grandfather of the other co-parceners, to make an alienation of the joint property, or incur a debt, binding on the
shares of the other co-parceners independently of their consent.
If the debt in the present case had been incur-red by the zamindar as the manager of a joint Hindu family nob being the father or grandfather,
would it be binding on the estate ? According to the learned advocate for the appellant the case has to be viewed in this aspect. There was a
danger to be averted to the estate because Vuppalapada village was sold. Whether the debt for which that estate was sold was properly incurred
or not is not a matter which a lender need enquire into at all. He relied for this proposition on the decision in Niladri Sahu v. Chaturbhuj Das, 6 Pat.
139 : A. I. R. 1926 P. C. 112 and also on the definition of what is meant by ""benefit"" and ""necessity"" in Sellappa Chettiar and Others Vs. Suppan
Chettiar and Others, . In the case of an ordinary manager of a joint Hindu family, if a creditor is told that properties belonging to the family have
been sold in court auction and the creditor is bona fide satisfied that such was the case, a lending by him to get the sale set aside would be : binding
on the estate. But it is contended on the other side that unless there is compelling necessity or apparent benefit to the estate, the borrowing would
nob be binding on the property because of the principle enunciated in Hanumanprasad Pandey v. Mst. Babooee Munraj Koonwaree, 6 M. I. A.
393: 18 W. R. 81 that only a lender who bona fide makes enquiries and satisfies himself of the necessities of the loan is protected even if the
manager does not apply the money borrowed for purposes of the estate. Mr. Umamaheswaram contends that the words in Section 4, viz. ""would
entitle the managing member of a joint Hindu family"" to incur a debt, do not include the, category of cases where a lender who makes bona fide
enquiries and leads the money is protected. It ia a case of a protection to the lender by making the estate liable and not one where the managing
member is given a right of incurring a debt. For this purpose he relies upon a recent decision of our learned brother Raghava Rao J. in Narra Rama
Naidu v. R. B. K. Krishnappa Naick, S. A. No. 1002 of 1946. The learned Judge says that what the section requires according to its plain
language is the existence of circumatances entitling the manager of a joint Hindu family to incur the debt in question. It takes no notice of
circumstances entitling tha lender to relief notwithstanding the absence of circumstances entitling the manager to incur the debt. We are not inclined
to agree with this distinction. If the lender makes bona fide enquiries and satisfies himself of the necessities of the loan, the alienation made by the
manager or the debt incurred by him could be binding on the estate. That would be a case where the manager is entitled to make an alienation. The
distinction is not whether the necessity or benefit does exist, but the relief given to the lender arises from the fact that having satisfied him-self of the
existence of necessity or benefit, he lends the money but the borrower does not utilise it for that purpose. It is only the failure of the manager to
utilise the money borrowed towards the necessity that is condoned in order to give relief to the lender. We are, therefore, of opinion that a reading
of Section 4, Impartible Estates Act, clothes the holder of an impartible estate with all the powers of the manager of a joint Hindu family not being
the father or the grandfather to mulot the family property by making alienations binding on the estate or incurring a debt binding on the estate just as
he is a manager of a joint Hindu family. The only difference which Section 4 postulates is that when a suit is brought on a debt incurred by an
impartible estate holder, unlike the manager of a joint Hindu family, he cannot represent his successors in interest in that suit. If the lender has to
realise the money from the estate subsequent to the death of that impartible estate holder, he has to take separate proceedings and show that the
borrowing was for a necessary purpose.
It is further contended by Mr. V. K. T. Chari that the question of bona fide enquiry does not arise in this case because there was an application
of the money to a necessary purpose. He relied upon the well known cases such as a AIR 1932 216 (Privy Council) regarding the character of an
impartible estate in comparison with that of a joint Hindu fami ly. He also relied upon Sellappa Chettiar v. Suppan Chettiar 1937- 1 M. L. J. 422:
A. I. R. 1937 Mad. 496. In the latter case, Venkata-subba Rao J. was of opinion that the rule of benefit to the estate should not be contined only
to cases where both need and benefit co- exist and the transaction need not be of a defensive nature and therefore a narrow interpretation should
not be put upon the expres-sion ""for the benefit of the eatate"". It is unnecessary for us in this case to discuss this matter at length because we are of
opinion that the payment of the amount due under the compromise decree for the maintenance due to the minor was a debt then binding on the
estate and the lender need not have gone further and seen whether the liability in its inception was one which would be binding on the estate. The
decision in Ramachandra Suru v. Venkatalakshminarayana, 37 M. L. J. 66 ; A. I. R. 1919 Mad. 429 on which Mr. Umamaheswaram laid great
stress and where the policy of the Impartible Estates Act is considered in great detail, cannot be said to be strictly applicable to the present case.
On the other hand, Mr. Thiruvenkatachari argues that what was public policy when the Impartible. Estates Act was enacted would not be public
policy today and he relies upon Bourne v. Keane (1919) A. C. 815 : 89 L. J. Ch. 17 and Fender v. St. John Mildmay, (1938) A. C. 1 . We do
not intend to go into the matter in view of our finding that there was a debt which was ostensibly binding on the estate and about which the
creditors'' agent, the present appellant, was bona fide satisfied that the same was binding on the estate. In this connection, we may also refer to a
decision of the Lahore High Court reported in Chalaram v. Kishenchand, AIR 1923 Lah 462 : 88 I.O. 762 where it is held that where the money
is actually utilised for a necessary purpose, the question of further enquiry was unnecessary. It seems to us therefore that the amounts due under the
promissory notes to Sambayya and Sambrajyamma are binding on the estate and the appellant is entitled to recover them.
The next amount claimed by the appellant and which is made the subject of appeal is the sum of Rs. 1155 due on a promissory note dated 7-
1-1936 by the zamindar for a principal sum of Rs. 1100 in favour of one Purushotham. The object with which this money was borrowed was for
paying off the peishkush due from the estate Section 6, Impartible Estates Act, prohibits the incurring of any debt by making the estate liable for
paying of land revenue due to the Government, unless the zamindar had first obtained the consent in writing of the Collector of the District in which
the estate is situated, though the clause further says that such consent shall not be refused unless, in the opinion of the Collector, the case is one in
which the land revenue due to the Government may be realised by management of the estate under the provi- sions of the Madras Revenue
Recovery Act, 1861. It cannot be said that in this case such a consent was either asked for or refused. Relying upon the decision in Venkatalingam
v. Venka-dri Rao, 50 Mad. 897 : A. i. R. 1927 Mad. 911 and a recent judgment of Leach C. J. and Lakahmana Rao J. in Krishnappa Nayanim
Varu v. Ramanandu, A. S. No. 439 of 1943 it is contended for the respondent that this debt is op-posed to public policy and cannot be made a
charge on the estate. In Venkatalingam v. Venkatadri, 50 Mad. 897: A. I. R. 1927 Mad. 911 the question whether the saie waa opposed to
Section 6, Madras Impartible Estates Act, was allowed to be raised even in appeal and the learned Judges held that in the interests of public
policy, the sale should be set aside. As the previous zamindar in this case did not even take the permission of the Collector to borrow for paying
off the peshkush and as Purushotham, the lender, knew fully well that the money was to be utilised for a purpose for which the estate could not be
alienated without the permission of the Collector, we are of opinion that the learned Subordinate Judge was right in holding that this sum cannot be
made binding on the estate. We therefore disallow the appellant''s claim re-garding the amount of Rs. 1155 claimed in the plaint.
The next item is the sum of Rs. 207-0-9 on a promissory note for Rs. 200 advanced by the appellant to the zamindar for raising the attachment
on his car. In view of the evidence in this case, that at the time the money was advanced, the ear belonging to the zamindar had been attached and
this amount was utilised for raising the attachment, we are of opinion that this debt comes within the ambit of Section 4, Impartible Estates Act.
Our conclusion, therefore, is that out of the amounts claimed by the plaintiff in this suit, the amounts due under the promissory notes to
Sambayya and Sambrajyamma as well as the amount due to the plaintiff under the promissory note dated 9-3-1936 are alone liable to be paid by
the present zamindar and that the rest of the claims are not binding on the estate.
In the result, the decree of the lower Court dismissing the suit is set aside and the plaintiff ia given a decree against the estate in the hands of the
present zamindar represented by the Court of Wards to the extent of the amounts due under the promissory notes exe-cuted to Sambayya and
Sambrajyamma aa well as the promissory note in favour of the plaintiff dated 9-3.1936. These amounts are decreed in addition to what haa been
allowed by the Collector. The decree of the lower Court will be modified accordingly. Each will bear his costs throughout.