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Bombay High Court
Gendal Raju vs Maganlal Chhaganlal Desai on 8 June, 1928
Equivalent citations: (1928) 30 BOMLR 1111, 113 Ind Cas 618
Author: K Charles Fawcett
Bench: C Fawcett, Kt., Mirza


JUDGMENT

Charles Fawcett, Kt., A.C.J.

1. In this case, we think the main facts found by the two lower Courts are clearly baaed on sufficient evidence, and that there is no basis or the contention that the Courts have unjustifiably inferred collusion between the plaintiffs and the Inamdar Ranchhod in regard to the payment of rents to him, instead of to the representatives of the three branches of the Inamdar family in accordance with the usual practice. There is, in our opinion, ample evidence upon which this finding of collusion could be arrived at; and we see no sufficient reason, even supposing we can go into this question of fact, for coming to a different conclusion. The finding of the lower appellate Court that the payments of rent were made by the plaintiffs according to the old plough-tax system to Ranchhod in collusion with him in order to defeat the other Inamdars’ claim to levy the rent according to the Vighoti system is, in our opinion, a perfectly good finding of fact, which is binding upon us in second appeal.

2. I have purposely substituted the word “claim” for the word “right” which is used by the District Judge in regard to the Inamdara’ contention that they have a right to levy rents according to the Vighoti system, because I am anxious that anything that I may say in my judgment should not, in any way, be treated as res judicata with regard to the dispute between the main body of the Inamdars and a number of tenants in this village as to whether the Inamdara can rightly levy rents on this Vighoti system and whether the tenants have rights of permanent tenancy at a uniform rent which cannot be disturbed. There is litigation pending on these points, and there is no necessity to decide those points for the purpose of dealing with this second appeal. Nor was it necessary for either of the two lower Courts to decide those points in order to pass the decree in this suit. It is true that both the lower Courts have held that the fact of the tenants at first paying rents for several years on the Vighoti system evidences their consent to the introduction of the new system. We do not think it at all necessary to come to a decision on that particular point. Whether they at first consented or not, that consent would not necessarily amount to any estoppel; nor has any such estoppel been alleged in this suit, and it is unnecessary to consider the question of such consent for the purpose of this suit, brought to prevent the Mamlatdar granting assistance to other Inamdars to levy rents from the plaintiffs according to the Vighoti system. What is clear is Fawcett that a dispute did arise between the tenants and the Inamdars and that the payment of rents to Kanchhod on the former system was made in consequence of that dispute, with the object of defeating or, at any rate, prejudicing the other Inamdars’ claim to levy rents according to the Vighoti system. That being so, the law applicable has, in our opinion, been rightly laid down by both the lower Courts, viz., that payment of rent to one of a body of landlords in such circumstances does not operate as payment to the whole body of landlords. As is said in Sheik Ibrahim Tharagan v. Rama Aiyar (1911) I.L.R. 35 Mad. 685 (p. 687) :

Assuming that the payment to one of several joint creditors will in law operate as payment to them all, there can be no doubt that the rule will not apply where the payment is fraudulently made to one of the creditors and not for the benefit of them all.

There is ample authority for that proposition, which was foreshadowed in an early decision of this Court in Krishnarav Ramachandra v. Manaji bin Sayaji (1874) 11 B.H.C. 106. Accordingly it is quite unnecessary for us to go into the question whether the last paragraph of Section 38 of the Indian Contract Act applies, so that payment of rent to one of several landlords has the legal consequence of payment to them all. It is not necessary for us to go into the questions that wore discussed in Annapurnamma v. Akkayya (1912) I.L.R. 36 Mad. 544 and which are referred to in Pollock & Mulla’s Contract Act, 5th Edition, at pp. 269 to 272.

3. In my opinion the decision of both the lower Courts is correct and I would dismiss this second appeal with costs.

Mirja, J.

4. I concur.


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