Ganapathi Iyer v. Ayyakannu — 1960 DIGILAW 333 (MAD)

Jagadlsan, J.- This Civil Revision Petition has been directed to be heard by a Division Bench by my Lord the Chief Justice as there is a conflict of judicial opinion on the question involved for decision in the case, namely, whether a sublessee or an under-lessee is a cultivating tenant within the meaning of section 2 (a) of the Madras Cultivating Tenants Protection Act (Madras Act XXV of 1955). The facts that have given rise to this Civil Revision Petition are not in dispute. The petitioner leased out a few items of his properties situated in the village of Pudukudi, Lalgudi taluk to one Rangaraju. There is a Vyavasaya Sangam (Agricultural Association) in the village of Pudukudi. Though the legal status of the said Sangam is not clearly disclosed, it is obvious that it is composed of several individuals who do not hesitate to put forward rights under the Madras Cultivating Tenants Protection Act as if they are cultivating tenants. Kolandaivelu who has given evidence in the case as P.W. 2 is stated to be the President of the Sangam. Rangaraju, the lessee from the petitioner, leased out 78 cents of wet land in S. No. 88 of the village to Kolandaivelu aforesaid. This Kolandaivelu in turn leased out the property to Ayyakannu, the respondent in this Civil Revision Petition. Having thus come into possession of the said 78 cents of wet land as an under-lessee from an under-lessee, Ayyakannu filed D.A. No. 288 of 1956 in the Revenue Court of Tiruchirapalli impleading the petitioner herein as the respondent to that application. He averred that he was a cultivating tenant entitled to the benefits of Madras Act (XXV of 1955) that at the time of the harvest of the first crop of kar in November, 1956, he gave notice to the petitioner herein of the proposed harvest by him requesting him to come to the thrashing floor to take his share of the paddy. The petitioner of course did not respond to that request and Ayyakannu made the harvest himself. He alleged that he got 20 kalams of paddy by the harvest. He claimed that out of this 20 kalams the share of the petitioner as per the Madras Cultivating Tenants (Payment of Fair Rent) Act (XXIV of 1956), was only 8 kalams. He therefore deposited Rs. He alleged that he got 20 kalams of paddy by the harvest. He claimed that out of this 20 kalams the share of the petitioner as per the Madras Cultivating Tenants (Payment of Fair Rent) Act (XXIV of 1956), was only 8 kalams. He therefore deposited Rs. 88 being the market vale of the 8 kalams of paddy into the sub-treasury at Lalgudi and started proceedings under section 3 (3) (b) of Madras Act (XXV of 1955). This section provides for an enquiry by the Revenue Divisional Officer into the quantum of lawful rent payable by a cultivating tenant to his landlord. This application was resisted by the petitioner-landlord on the ground that Ayyakannu was not a cultivating tenant competent to institute any proceeding under section 3 (3) (b) of the Act. The Revenue Court held that the land was Cultivated by Ayyakannu as sub-lessee during 1956-57, and he was therefore a cultivating tenant of the land for that period entitled to deposit the rent under section 3 (3) of the Act, and to start an enquiry in respect of the rent payable by him. The Revenue Court further held that the fair rent under the Madras Cultivating Tenants (Payment of Fair Rent) Act can only be fixed by the Rent Court and that after the fixation of such fair rent Ayyakannu will have to pay the balance, if any, that may be found due. The landlord was permitted to draw the deposit of Rs. 88 from the sub-treasury. The Civil Revision Petition has been preferred by the landlord challenging the correctness of the said decision by the Revenue Court. Ayyakannu who now claims to be the cultivating tenant under the Madras Act (XXV of 1955) and who instituted D.A. No. 288 of 1956 before the Revenue Court at Tiruchirapalli admittedly got a lease of the property only from Kolandaivelu, P.W. 2 in the case. P.W. 2 has deposed that he took the land on lease from Rangaraju. This is what he deposed before the Revenue Court: “C.P. (Counter petitioner) owns land in my village. I took C.P’s. land on lease from Rangaraju, for the current year. Madabhutham’s son Thangavelu who cultivated C.P’s land leased the land to Sangam. I sub-leased to landless people” In cross-examination he admitted that the landlord leased only to Rangaraju. Rangaraju himself gave evidence as P.W. 3. I took C.P’s. land on lease from Rangaraju, for the current year. Madabhutham’s son Thangavelu who cultivated C.P’s land leased the land to Sangam. I sub-leased to landless people” In cross-examination he admitted that the landlord leased only to Rangaraju. Rangaraju himself gave evidence as P.W. 3. He admitted having taken 2.57 acres of land on lease from the counter-petitioner the landlord. He admitted that he sub-leased 1.57 acres to Kolandaivelu, P.W. 2. He also admitted that the landlord issued notice to him claiming arrears of rent. Of course he did not pay the arrears but sent only a reply notice as per Exhibit B-1. He further admitted that he was in arrears of rent to his landlord for the last fasli. On this evidence , it is absolutely clear that the petitioner leased out a block of lands to P.W. 3, that P.W. 3 sub-leased a portion of it to P.W. 2 and P.W. 2 further under-let a portion to P.W. 1, Ayyakannu who is now on the scene claiming the character of a cultivating tenant under the Act. The simple question which arises for decision is whether an under-lessee or any person deriving title through him is a cultivating tenant within the meaning of section 2 (a) of the Act. Section 2 (a) is as follows:- “Cultivating tenant in relation to any land means a person who carries on personal cultivation on such land under a tenancy agreement, express or implied, and includes:- (i) any such person who continues in possession of the land after the determination of the tenancy agreement, and (ii) the heirs of such person, but docs not include a mere intermediary or his heirs." Section 2 (e) defining ‘landlord ‘is as follows: “landlord in relation to a holding or part thereof means the person entitled to evict the cultivating tenant from such holding or part”. Section 2 (ee) defines ‘personal cultivation ‘thus: “A person is said to carry on personal cultivation on a land when he contributes his own physical labour or that of the members of his family in the cultivation of that land”. Section 2 (ee) defines ‘personal cultivation ‘thus: “A person is said to carry on personal cultivation on a land when he contributes his own physical labour or that of the members of his family in the cultivation of that land”. Section 3 providing an immunity to cultivating tenants from being evicted is as follows:- “(1) Subject to the next succeeding sub-sections, no cultivating tenant shall be evicted from his holding or any part thereof, during the continuance of this Act, by or at the instance of his landlord, whether in execution of a decree or order of a Court or otherwise” It is the definition of the term ‘cultivating tenant ‘which we must observe is not quite clear or free from obscurity or ambiguity, that has given rise to this controversy namely whether an under-lessee or a sub lessee is a cultivating tenant or not. The learned counsel for the respondent contended that in order to be a cultivating tenant within the meaning of the Act only three conditions need be fulfilled. The first condition is that the person must carry on personal cultivation, that is he must contribute his own physical labour or that of the members of his family in the cultivation of the land. The second condition is that there must be a tenancy agreement express or implied. According to the learned counsel for the respondent a sub-lessee fulfils both the conditions as he carries on personal cultivation by contributing his own physical labour or that of the members of his family, and that he is under a tenancy agreement with his lessor, though that lessor is only a lessee from the head-lessor. The learned counsel for the petitioner contended that the tenancy agreement express or implied contemplated under section 2 (a) of the Act is an agreement between the owner of the land and the tenant and not an agreement between the tenant and his sub-tenant. It was pointed out on behalf of the petitioner that while the definition of the term ‘culivating tenant' is specifically made to include the heirs of such person no reference is made to the assignee from the lessee. Strong reliance was also placed on behalf of the petitioner on the language of section 3 of the Act which makes it clear that a sub-tenant cannot be evicted from the holding at the instance of the head-lessor. Strong reliance was also placed on behalf of the petitioner on the language of section 3 of the Act which makes it clear that a sub-tenant cannot be evicted from the holding at the instance of the head-lessor. We shall now refer to the decisions of this Court which dealt with the subject-matter now in controversy. The first decision to which our attention has been drawn is that delivered by Ramachandra Iyer, J., in C.R.P. No. 604 of 1957. The learned Judge observed thus in the judgment: "The agreement contemplated in section 2 (a) of Madras Act XXV of 1955 whether it was express or implied should be with the landlord directly." This observation of the learned Judge was referred to with approval by Balakrishna Ayyar, J., in the decision in Ramaswami Naidu v. Marudaveera Mooppan1. The learned Judge observed as follows: "I am unable to accept the contention of Mr. Krishnaswami Ayyar that a sub-lessee can claim the benefits of this Act. A tenancy agreement means an agreement creating a tenancy and when we speak of a tenancy we normally understand that there is on the one side a landlord and, on the other side, a tenant or lessee. In relation to sub-lessees we do not usually use the term tenancy agreement; instead we speak of the assignee of a lease. It will also be appreciated that if the contention of Mr. Krishnaswami Ayyar were right, it would be possible for a lessee to create rights larger than he himself has and normally a construction which produces such a result should not be accepted. The expression ‘heirs, legal representatives and assigns ‘is a very familiar one. When therefore the legislature said that the ‘heirs of such person ‘shall be deemed to be tenant but did not, at the same time, include’ his legal representatives or assigns’ in that category the inference must be that it did not want to confer the benefit of the Act on the legal representatives or assignees of the original lessee. Otherwise, it will be hard to explain the omission of the words’ legal representatives and assigns." In another unreported decision, C.R.P. Nos. 1888 and 1889 of 1958 Ramachandra Iyer, J., followed the decision of Balakrishna Ayyar, J., cited above. Otherwise, it will be hard to explain the omission of the words’ legal representatives and assigns." In another unreported decision, C.R.P. Nos. 1888 and 1889 of 1958 Ramachandra Iyer, J., followed the decision of Balakrishna Ayyar, J., cited above. The learned Judge therein observed as follows: "The definition of the term ‘cultivating tenant’ also makes it clear that the assignees of a cultivating tenant could not become cultivating tenants in respect of the holdings held by the assignor under the landlord. The principle for the non-recognition of the assignees as cultivating tenants is that there could be no privity of contract between the landord and the assignee of a lessee". In C.R.P. No. 1017 of 1957 the learned Chief Justice took a contrary view. The petitioner in that case was no other than the petitioner herein. The learned Chief Justice holding that a sub-lessee was a cultivating tenant observed thus: "It is clear from the evidence set out in the judgment of the Revenue Court that the respondent who deposited the rent in the Revenue Court was a cultivating tenant within the meaning of the definition in the Act. The petitioner who is the landlord alleged that one Rangarajan was his lessee. That Rangarajan came and gave evidence as P.W. 3 that he had given the benefit of the lease to P.W. 2 who in turn sub-leased to P.W. 1 and P.W. 1 cultivated the land in 1956-1957 as sub-lessee. In the circumstances he would be entitled to the benefit of the Act as a cultivating tenant and as such he deposited the rent under section 3 (3) (a) of the Act." Somasundaram, J., who heard this Civil Revision Petition in the first instance in his judgment directing the reference has expressed the view that he is inclined to agree with the decision of my Lord the Chief Justice in C.R.P. No. 1017 of 1957. We shall now examine the position of an under-lessee apart from the provisions of Madras Act (XXV of 1955), in the general law governing the relationship of landlord and tenant. The tenant of a demised property can in the absence of agreement restricting his rights under-let it for any period less than the residue of his own term. We shall now examine the position of an under-lessee apart from the provisions of Madras Act (XXV of 1955), in the general law governing the relationship of landlord and tenant. The tenant of a demised property can in the absence of agreement restricting his rights under-let it for any period less than the residue of his own term. The under-lease comes to an end with the head-lease and the under-lessee does not in the absence of fresh agreement become the tenant to the head-lessor but if the under-lessor continues to hold as a tenant the yearly under-tenancy also continues. (Halsbury’s Laws of England, Vol., 23, page 447, foot note). There is neither privity of contract nor privity of estate between the head-landlord and the under-lessee. The under-lessee has no equity to enforce the provisions of the under-lease against the head-landlord (Tayler v. Gillet)2. If the head-lease contains a proviso for re-entry on breach of convenant the under-lessee is liable to be evicted for such breach. But if the head-lease is terminated by the lessee voluntarily surrendering the lease to the head-lessor that will not prejudice the rights of the under-lessee on the principle that the lessee cannot derogate from his own grant. This principle was stated thus by Mellish, L.J., in Great Western Railway Co v. Smith3. "It is a rule of law that if there is a lessee and he has created an under-lease or any other legal interest if the lease is forfeited then the under-lessee or the person who claims under the lessee loses his estate as well as the lessee himself ; but if the lessee surrenders he cannot by his own voluntary act in surrendering prejudice the estate of the under-lessee or the person who claims under him." This is also the principle embodied in section 115 of the Transfer of Property Act. The under-lessee being only a holder of derivative interest in respect of the demised property from the lessee cannot certainly have higher rights than his own assignor. Though the lease-hold estate cannot be drowned by a voluntary surrender by the lessee in favour of the head-lessor so as to prejudice the rights of strangers like the under-lessee who is not a party to the surrender seldom can the estate of the under-lessee survive the extinction or termination of the estate of the original lease. Though the lease-hold estate cannot be drowned by a voluntary surrender by the lessee in favour of the head-lessor so as to prejudice the rights of strangers like the under-lessee who is not a party to the surrender seldom can the estate of the under-lessee survive the extinction or termination of the estate of the original lease. A lessee cannot efface himself and bring about a direct jural relationship between the head-lessor and the under-tenant. If the lessee were to be in such a position it can only mean that tenants can be foisted upon the landlord irrespective of his inclinations in the matter. We are happy to find that such is not however the position under the general law relating to landlord and tenant. The question yet remains whether the special enactment, Madras Act (XXV of 1955), is so worded as to make a departure from the general law inevitable. It must be noted that even a cultivating tenant enjoying the privileges of the enactment is only a statutory tenant in respect of whom and in whose favour it is impossible to conceive of an estate between himself and the landlord. The statutory tenant has only the statutory rights conferred upon him by the special enactment. The decision in Soloman v. Orwell1, is somewhat instructive in this connection. In that case the statutory tenant of a dwelling house within the Rent Restrictions Act let to a sub-tenant three rooms in the dwelling house with the right to share with the tenant the kitchen scullery. The statutory tenant having vacated that part of the premises occupied by her by removing therefrom and giving the keys to the landlord the landlord claimed from the sub-tenant possession of the part sub-let. The sub-tenant submitted that after surrender of the statutory tenancy she, the subtenant had the same right given to her under section 7 of the Landlord and Tenant (Rent Control) Act, 1949, against the landlord as she had against the statutory tenant and that that right could only be terminated by notice to quit in the ordinary manner. The sub-tenant submitted that after surrender of the statutory tenancy she, the subtenant had the same right given to her under section 7 of the Landlord and Tenant (Rent Control) Act, 1949, against the landlord as she had against the statutory tenant and that that right could only be terminated by notice to quit in the ordinary manner. It was held that a statutory tenant had no interest capable of existing in law as an estate but had merely a statutory right of occupation, which could not be the subject of a surrender at Common Law, and that therefore when the tenant vacated the premises the sub-tenant’s right of occupation automatically came to an end and the landlord was entitled to possession. At page 876 Denning, L.J., observed as follows:- "When a statutory tenant sub-lets a part of the premises, he does not thereby confer any estate or interest on the sub-tenant. A statutory tenant has no estate or interest himself, and he cannot carve something out of nothing. The sub-tenant, like the statutory tenant, has only a personal right or privilege. The question is: What is the position of the sub-tenant when the statutory tenancy comes to an end ? A statutory tenancy may, of course come to an end without a notice to quit, i.e., by death (if there are no entitled relatives) or by the delivery up of the premises to the landlord. When the statutory tenancy comes to an end, the sub-tenant’s right automatically comes to an end unless there is some statutory protection afforded to him." At page 877 Romer, L.J., observed thus: "......it is plain that a statutory tenant has no legal or equitable estate which can be the subject of a surrender to the reversioner or out of which a subsidiary estate may be taken by a sub-tenant. All he has is a personal right of occupation which he can bring to an end by relinquishing possession. That is different from surrendering an estate which will merge in the superior estate of the reversioner." We are of opinion that the principle of the decision referred to above is fully applicable to an under-lessee from a cultivating tenant under Madras Act (XXV of 1955). That is different from surrendering an estate which will merge in the superior estate of the reversioner." We are of opinion that the principle of the decision referred to above is fully applicable to an under-lessee from a cultivating tenant under Madras Act (XXV of 1955). Such under-lessee cannot claim to have any interest in the land derived from the cultivating tenant as such interest as is conferred upon the cultivating tenant is purely personal to him and his heris. If the cultivating tenant himself cannot be supposed in law to have any estate as between himself and the head-lessor much less can the sub-lessee claim any interest in himself. We have therefore no-hesitation in holding that a sub-lessee or an under-lessee is wholly beyond the pale of the Act. We are also convinced that section 2 (a) of the Act ought not to be so construed as to lead to results which will be manifestly startling. Once the sub-lessee gets a foot-hold in the scheme of the Act and becomes clothed with the rights of a cultivating tenant it looks as if he can never be evicted from the holding. The position may be thus illustrated. A is the landlord; B is his lessee and C is the under-lessee from B. A can claim arrears of rent only from B and can only evict B for default in payment of such arrears. B having sub-let the property to C will no longer be interested in the property and of course will never agree to become liable to pay rent to A. A cannot evict C for default in the matter of payment of rent by his lessee B. C can if at all be evicted only B. If B evinces no interest in the matter and if A cannot evict C, C will be a permanent tenant on the land without any danger or apprehension of his being evicted from his holding. We are unable ‘to view with equanimity that the Legislature intended to bring about such a disastrous position. The rule of statutory interpretation even when the words of the statute are plain will enable a Court to avoid a construction which will result in inconvenience, injustice or absurdity. This rule has been variously described by eminent Judges, sometimes as the “rule of common sense”, and on some occasions as the “golden rule”. The rule of statutory interpretation even when the words of the statute are plain will enable a Court to avoid a construction which will result in inconvenience, injustice or absurdity. This rule has been variously described by eminent Judges, sometimes as the “rule of common sense”, and on some occasions as the “golden rule”. In Simms v. Registrar of Probates1, Lord Hobhouse observed thus: “Where there are two meanings, each adequately satisfying the meaning (of a statute) and great harshness is produced by one of them, that has a legitimate influence in inclining the mind to the other. ............... It is more probable that the Legislature should have used the word in that interpretation which least offends our sense of justice.” In R. v. Overseers of Tonbridge2, Brett, L.J., said: “If the inconvenience is not only great, but what I may call an absurd inconvenience, by leading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable, though not in its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning.” We think that this cardinal rule of interpretation can well be applied to construe the terms of section 2 (a) of the Act which are, of course, enigmatic. Reference was made to the decision of the Andhra Pradesh High Court in Rangayya v. Tatayya3. In that case two archakas who held lands on archakatvam service leased them out to one Tatayya. Tatayya sub-leased a portion thereof in favour of one Rangayya. The result was that Tatayya was holding a portion of the lands as the lessee and Rangayya was holding the other portion as the sub-lessee. The archakas filed applications for fixation of fair rent under section 6 of the Andhra Tenancy Act (XVIII of 1956). One of the questions raised was whether Rangayya, the sub-lessee was a cultivating tenant against whom an application for fixation of fair rent can be filed. Umamaheswaram, J., held that the archakas were not competent to maintain any application against Rangayya, the sub-lessee, as he was not their cultivating tenant. To this extent we are in respectful agreement with the learned Judge. Umamaheswaram, J., held that the archakas were not competent to maintain any application against Rangayya, the sub-lessee, as he was not their cultivating tenant. To this extent we are in respectful agreement with the learned Judge. But the learned Judge further observed as follows at page 54: “Having given my anxious consideration, I am inclined to hold that Tatayya is a cultivating tenant under the archakas in respect of 1 acre and 60 cents and that Rangayya is the cultivating tenant under Tatayya in respect of 9 acres, 70 cents. It might be open to Tatayya to take proceedings under section 6 of the Act as against Rangayya in respect of 9 acres and 60 cents in his actual possession.” If the learned Judge meant to lay down that Rangayya the sub-lessee can be called a cultivating tenant qua his landlord Tatayya we must express our respectful dissent. Mr. M. S. Sethu, the learned counsel for the respondent relied upon a decision in Serang Abdulkhadir v. Rajagopala Pandaryar1, in support of his contention that a sub-lessee is a cultivating tenant. That case arose out of the provisions of the Tanjore Tenants and Pannayals Protection Act. Sub-lessees of parcels of holdings claimed the benefit of restoration of possession of property under section 6 (2) of that Act. The question was whether they were cultivating tenants entitled to the benefits of the Act. The learned Chief Justice delivering the judgment of the Division Bench observed thus at page 35: “No doubt the tenancy agreement is not with the land-owner as such, but in definition the words are merely "a tenancy agreement express or implied" and it does not specify that such agreement must be with the landowner as defined in clause (g). This is the view which Govinda Menon, J., took in K. P. A. D. Charities, Nachiarkoil v. Chinnaswami2, the facts of which case are on all fours with the facts of this case and Rajagopalan, J., has followed the decision of Govinda Menon, J.” The definition of the term “landowner” in the Tanjore Act is very significant. This is the view which Govinda Menon, J., took in K. P. A. D. Charities, Nachiarkoil v. Chinnaswami2, the facts of which case are on all fours with the facts of this case and Rajagopalan, J., has followed the decision of Govinda Menon, J.” The definition of the term “landowner” in the Tanjore Act is very significant. It is as follows:- “Landowner” means the owner or other persons deriving rights under him, who lets land for cultivation by a tenant, and includes the assignees, heirs or other legal representatives of such owner or: person deriving rights under him." Section 2 (e) of Madras Act (XXV of 1955), defines landlord as the person entitled to evict a cultivating tenant. We are of opinion that the terms of the two enactments are not in pari materia and that the decision of the Division Bench referred to cannot be applied to ascertain the status of a sub-lessee under Madras Act (XXV of 1955). With respect we agree with the view taken by Balakrishna Ayyar and Ramachandra Iyer, JJ., in the decisions already noted. The Civil Revision Petition is allowed and the decision of the Revenue Court, Tiruchirapalli, in D.A. No. 288 of 1956 is set aside and the said application is directed to be dismissed with costs throughout. V.S. ---------------------- Petition allowed.