The main legal point established in the judgment is that the plaintiff is not the 'defaulter' within the meaning of Section 35, Act 2 of 1864, and the appellants cannot rely on Section 70, Contract Act, to support their claim for deduction of the peishcush paid by them.

Madhavan Nair, J.

1. These second appeals relate to the question whether the Rajah of Venkatagiri is entitled to claim the full amount of jodi for faslis 1332 and 1333 due from the appellants (defendants 1 and 3 in both the suits) who are the agraharamdars of the villages of Sakti Ganeshwarapuram and Kunnam Kulattur. The liability to pay the jodi was not disputed by the agraharamdars; but they contended that they are entitled to deduct from the amount claimed the amount of peishcush due on these villages which they had paid to the Government for the faslis in question. The deduction was claimed under Section 35, Act 2 of 1864, and Section 70, Contract Act. On the first ground, which was the only ground pressed in the lower appellate Court, the Subordinate Judge found against the agraharamdars contention. Both the grounds are urged before me in second appeal.

2. The facts are briefly these: The two villages of Sakti Ganeshwarapuram and Kunnam Kulattur formed part of the Kalahasti Zamindari and were purchased by the plaintiff at a Court sale. After the purchase he did not get the villages separately registered in his name by the Collector under Madras Act 1 of 1876, and so the Zamindar of Kalahasti remained as the registered holder of these two villages. When the Rajah of Kalahasti failed to pay the peishcush on the zamindari for the suit faslis these villages were attached by the Government. The agraharamdars then paid the proportionate peishcush due on these villages and got them released from the attachment. They now contend that the peishcush due from these villages was rightly due from the plaintiff after his purchase at the Court sale and since that peishcush was paid by them the amount so paid should be deducted from the jodi now claimed by him.

3. The first question is whether the claim of the appellants is justified under Section 35, Revenue Recovery Act 2 of 1864. Section 35, Act 2 of 1864, so far as it is relevant to the present argument, is as follows:

It shall be lawful for any person claiming an interest in land which has been, or is about to be attached, to obtain its release by paying the arrears, interest and costs incurred; and all such sums, if paid by a tenant, may be deducted from any rent then or afterwards due by him to the defaulter.

4. This section entitles a tenant, if he has obtained a release of his land from the attachment by paying the arrears of revenue due on it, to deduct the sum paid by him from the rent due by him to the defaulter. Assuming that the agraharamdars may be called tenants within the meaning of the section about which I am very doubtful, it is clear they have to show in this case that the plaintiff is the "defaulter" in order to claim the benefit of this section. The term "defaulter" is not defined in the Act. It has been held in Subramania Chetty v. Mahalinga Sami Sivan [1910] 33 Mad. 41 that where one person is the real owner of a1 share in land and another is the registered proprietor of the whole, the latter and not the former is the "defaulter" within the meaning of the Revenue Recovery Act.

5. According to this decision, though the plaintiff is the real owner of the two villages, inasmuch as their transfer has not been registered in his name, the transfer is invalid against the Government, and so the registered pattadar remains the landholder within the meaning of the Revenue Recovery Act, and the person liable to pay the revenue under Section 3 and becomes a defaulter within the meaning of the Act if he does not so pay. This case1 has been followed in Jagapati Raju v. Sadrusannama Arad [1916] 39 Mad. 795. If this is the position, then it must follow necessarily that the defendants cannot recover the peishcush paid by them from the plaintiff as the Rajah of the Kalahasti is the defaulter and the plaintiff is not under any obligation to pay the proportionate revenue to Government. The Government rightly treated the Rajah of Kalahasti as the defaulter in spite of the purchase