The voluntary nature of a payment can preclude a party from enforcing it, and a prior decision may not always operate as res judicata in a subsequent suit.

Madhavan Nair, J.

1. The plaintiff-appellant, the Raja of Venkatagiri claimed from the defendant-respondent the holder of an inam in his estate a small sum of money amounting to Rs. 5-9-2 as estimated in the memorandum of second appeal in respect of a cess called sivunimera for Faslis 1329 to to 1332. The defendant contended that he is not liable to pay this cess as it is only a voluntary payment. The appellant then stated that it was not open to the defendant to raise this plea in view of the decision in O.S. No. 122 of 1919 which would operate against him as res judicata. The lower Courts dismissed the plaintiffs claim on the ground that sivunimera was shown to be a voluntary payment and that the decree in O.S. No. 122 of 1918 obtained by the plaintiff against the defendants father does not operate as res judicata, against the defendant.

2. It is argued before me, that, even though sivunimera is a voluntary payment, the respondent is now precluded from raising the plea on the ground of res judicata by virtue of the decision in O.S. No. 122 of 1918. The respondent raises a preliminary objection that no second appeal lies in this case as the appellants suit is of a small cause nature for an amount which does not exceed Rs. 500.

3. The two points for my decision, therefore, are (1) whether the suit is of a small cause nature and (2) whether the plea of res judicata is sustainable.

4. Point No. 1. It is argued on behalf of the appellant that the present suit is excepted from the cognisance of the Court of Small Causes by virtue of Clause 13 of the Second Schedule of the Small Cause Courts Act. This clause refers to a suit to enforce payment of the allowance or fees respectively called malikana or cess or other dues when the cess or other dues are payable to a person by reason of his interest in any immoveable property or hereditary office or any shrine or religious office. If the cess called sivunimera is payable by the respondent to the appellant by reason of his interest in immoveable property, then clearly a Court of Small Causes cannot take cognisance of the suit. It has been held by this Court that the cess or dues contemplated in Article 13 are payments which a person is entitled to as representing his interest in a certain immoveable property and not because he possesses some interest in immoveable property. See Maharajah of Vizianagaram v. Kota Veeranna 11 Ind. Cas. 760 : 36 M. 1 : 10 M.L.T. 167 : (1911) 2 M.W.N. 139 : 21 M.L.J. 819 and Krishnaswami Naidu v. Sriram Sriramulu Naidu 106 Ind. Cas. 5 : 53 M.L.J. 727 : (1927) M.W.N. 826 : 26 L.W. 676 : 39 M.L.T. 490 : A.I.R. 1928 Mad. 21. In this case it was conceded in the lower Courts that sivunimera is a voluntary payment. It appears to me that this concession means that sivunimera is not paid by the respondent to the appellant by reason of his interest in immoveable property. If the claim is based on some interest in immoveable property, then prima facie it will be a claim binding on the respondent. As the payment is purely a voluntary one, I must hold that it does not come within the purview of Article 13 of Schedule II. I must, therefore, uphold the preliminary objection. This is enough to dispose of this second appeal but as the question of res judicata was also-argued, before me I would very briefly consider that plea also.

5. In O.S. No. 122 of 1918 the plaintiff sued the father of the present defendant as 1st defendant for Rs. 29-13-0 etc. from shrotrium sivunimera, road cess, railway cess, for the inam in the possession of the defendants for Faslis 1324 to 1326. The defendants appeared in person but filed no written statement. They confessed judgment and a decree was passed against them. The second and the third paragraphs in that judgment are as follows:

6. Paragraph 2. The defendants appeared in person but filed no written statement.

7. Paragraph 3. Defendants in person confess judgment and say that they remitted Rs. 24-9-0 and plaintiffs Pleader admits receipt