A. Umamakeswaran vs K. Vlagaraja Kadavaroyor

Ramachandra Ayyar, C.J.—The Petitioner who was a member of a joint Hindu family owned more than two velis (13-1/3 acres) of wet land in Thanjavur district. The Respondent who is a cultivating tenant had obtained from the family, lease of certain lands which now formed the subject-matter of this petition. The family remained joint on 1st October 1956, but subsequent thereto it became divided as a result of which the Petitioner was allotted property which was less than five acres of wet land. The Petitioner with a view to carry on personal cultivation applied to the Revenue Court at Kumbakonam for the resumption of one-half of the lands leased out to the Respondent which had fallen to his share in the family partition. That application was resisted by the Respondent and was dismissed by the Revenue Court on the ground that as the Petitioner could not be deemed to be the lessor at the time when Section 4A of the Madras Cultivating Tenants'' Protection Act came into force, he could not maintain the application; hence the present Civil Revision Petition.

A similar question was raised before Kunhamed Kutti J., in Rajadurai v. Kunjurasu Vanniar (1961) 2 M.L.J. 426. The learned Judge was of the opinion that where a cultivating tenant had obtained lease of lands from a Hindu undivided family which owned lands in excess of two velis on the relevant date, it would not be open to any member of the family who had received a lesser area at a subsequent partition in the family, to apply u/s 4A of the Act for resumption of a moiety of the land for his personal cultivation. The main reason which induced the learned Judge to come to that conclusion was that as during the subsistence of the family no member of it could say that lie was entitled to any specific share in the property of the family, he would not be a landlord of any specific share on the relevant date m as it could only be said that he became a landlord of a definite share subsequent to that date as a result of the partition, he would not be entitled to recover possession of a moiety of the lands leased out for his personal cultivation.

Section 4A was introduced into the Madras Cultivating Tenants'' Protection Act by the Madras Amending Act XIV of 1956. That is a remedial piece of legislation intended to benefit the small landholders who require lands bona fide for their personal occupation and cultivation. Section 4A(1) conferred a right on the landlord to resume for his personal cultivation lands not exceeding one-half of the lands leased out to the cultivating tenant. Sub-Section 4 of Section 4A limits that'' right to landowners owning lands less than five acres. It states:

Nothing in Sub-Section 1 shall be deemed to entitle any landlord to resume possession, if, on the day the Madras Cultivating Tenants Protection (Amendment) Act, 1956, comes into force, he owns land exceeding 13-113 acres of wet land or he has been assessed to any sales tax, profession tax or income tax under the laws relating to the levy of such taxes during 195455 or 1955-56 nor shall Sub-Section 1 be deemed to confer on the landlord a right to resume possession of a greater extent than that which along with the extent he is already in possession of either as owner or as tenant or as both would make up an extent of five acres of wet land.

Sub-Section 5:

No person who is not entitled to resume possession under this section on the day the Madras Cultivating Tenants Protection (Amendment) Act, 1956, comes into force, shall be deemed to be so entitled by reason of any subsequent change in his circumstances.

It is contended on behalf of the Respondent that as the joint family was the landlord at the time when the Amending Act came into force, the Petitioner who was then not entitled to any definite share in the property could not be held to be a landlord; and that as he became a landlord only subsequently by reason of the partition in the family he could not on the terms of Sub-Section 5 claim any relief under Sub-Section 1. This contention proceeds on a misapprehension. A joint Hindu family is not a legal entity except in certain cases where a statute gives it a persona, for example, the Indian income tax Act. In other cases a joint Hindu family is a body of coparceners and so far as transactions with the outside world are concerned it will be represented by the hartha or the manager of the family. If the kartha or manager grants lease of the family properties he should be deemed to have granted such a lease on behalf of all the coparceners. It cannot, therefore, be said that the Petitioner in the present case was not a land owner at the time when the lease was granted by the family. He had interest in the land, the property of the family. But at the same time the Petitioner cannot be held to be a landlord owning lands exceeding 13-1/3 acres of land. He had only a share in the family properties which remained undivided and which had not crystalised into any definite property or extent. In Civil Revision Petition No. 443 of 1959, a question arose under the Fair Rent Act of 1956, whether one of the members of the joint family which owned seven acres of land could be said to own the entire extent. Rajamannar C.J., observed:

The fact that a family consisting of four co-parceners owns as ancestral property an extent of seven acres does not mean that each coparcener entitled to only a fractional share therein, can be held to own the entire extent.

We respectfully agree with this observation and hold that although the Petitioner had an interest in the lands as one of the beneficiaries under the lease, he could not be said to own the entire extent of the joint family properties. By reason, however, of the partition of the family that followed, the Petitioner''s rights became ascertained and he obtained less than five acres. This result has been achieved as a result of the disintegration of the family. It cannot be said that it amounted to a change in the Petitioner''s circumstances though it would be correct to say that there was a change in his status, namely, that he became separated while till then he was a coparcener along with certain others. What Sub-Section 5 refers to is a change in the circumstances of the landlord, namely, the landlord who granted the lease. To explain by an illustration, suppose a landlord owns more than 13-1/3 acres of land and he sells away all the lands in excess of 5 acres that will be a change in his circumstances. But where the landlord happens to be a quasi-corporate body like joint Hindu family or a body of coparceners an divided the family properties among themselves, it cannot be said that there was a change in the circumstances of each of the members of the family or the co-sharers within the meaning of Sub-Section 5 of Section 4A of the Act, though it can certainly be said that there has been a change in the status. The family having disintegrated, there is an end of it and there could thereafter be no change in its circumstances. In Muthuveeran v. Govindan ILR [1961] MAD. 908 (F.B.), a Full Bench of this Court examined closely the nature of a partition in a joint Hindu family and it was held that an assignment of a particular item at partition to a sharer was not a transfer by act of parties but one by operation of law. The conversion of what was previously joint enjoyment by reason of partition cannot amount to a change of circumstances within the meaning of Sub-Section 5. That provision will not, therefore, in our opinion, apply to a case of partition of a Joint Hindu Family.

Mr. K.S. Naidu, appearing for the Respondent, placed considerable reliance on the decision in Balakrishna v. Singara ILR [1956] MAD. 944. In that case the original landowner was a Hindu undivided family which owned more than, one veli of land. u/s 3(b) of the Thanjavur Tenants and Pannaiyal Ordinance (and the Act that followed), the provisions of the Act would not apply in respect of the land held by a landowner of an extent exceeding one veli of land. After the Ordinance came into force the family got divided. A question arose whether the exemption contained in Section 3-B of the Act would apply to each of the divided members of the family who got less than one veli at the partition. That was answered in the negative holding that the material date for ascertaining the rights and liabilities of a cultivating Want under the Act was the date on which the Ordinance came into force and such rights would not get altered by reason of anything which happened subsequently. The learned Judges, however, recognised that the term ''landowner'' mentioned in several of the sections in the Ordinance and the Act might also refer to a landowner, ad hoc, actually concerned in the dispute which may have to be decided by the conciliation officer. We are of the opinion that the decision in that case cannot apply in the construction Section 4A which relieves the rigour of the ex- proprietary statute in favour of small landholders. Sub-Section 1 of Section 4A provides for resumption of lands from the cultivating tenant. Sub-Sections 4 and 5 impose certain restrictions in regard to two categories of landowners who would be entitled to apply under Sub-Section 1. The limitations contained in Axss, Sub-Sections 4 and 5 should be strictly construed. In Bala krishna v. Singara ILR [1956] Mad. 944, the question turned upon the definition of the term ''landowner'' and the learned Judges held that a landowner will be one to whom the Act applied on the date of commencement of the Act, his assigns, heirs and legal representatives. But Section 4A is an inroad which has been specifically enacted to take away a part of the benefit granted to the cultivating tenant under the other provisions ox the Act. That provision has, therefore, to be construed not on the basis of any right acquired under the Act by a tenant, because it is that right which is modified but on its own terms. There is nothing in Sub-Section 1 to qualify the right of a person who satisfies the definition of the landlord on the date when the application was made thereunder for resumption of land for personal cultivation in the way suggested. We are unable, therefore, with great respect to agree with the view expressed in Rajadurai v. Kunjurasu Vanniar (1961) 2 M.L.J. 426. We are of opinion that where a joint Hindu family which owned more than two velis of wet land and granted a lease to a cultivating tenant before Section 4A of Act XIV of 1956 came into force, became divided subsequently, and any member thereof became entitled to less than five acres of land, it would be competent for such a divided member to apply for resumption of a moiety of lands allotted to him for his personal cultivation u/s 4A(1) of the Act. This civil revision petition is, therefore, allowed. No order as to costs.