Ganapathi Iyer vs Ayyakannu

Jagadisan, 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 sub-lessee 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 Sangara (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 Survey

No. 88 of the village of Kolandaivelu aforesaid. The 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 under-lessee from an under-lessee, Ayyakannu filed D.A.

No. 288 of 1956, in the Revenue Court of Tiruchirappalli impleading the Petitioner 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,

Act XXIV of 1956, was only 8 kalams. He, therefore, deposited Rs. 88, being the market value of the 8 kalams of paddy into the sub-treasury at

Lalgudi and started proceedings u/s 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

proceedings u/s 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 u/s 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 Kent) 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 Tiruchirappalli, 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:

Counter-Petitioner owns land in my village. I took counter-Petitioner''s land on lease from Bangaraju, for the current year. Mada-bliutham''s son

Thangavelu who cultivated counter-Petitioner''s land leased the land to Sangham. 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 subleased, 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

does 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 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 two 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 u/s 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 '' cultivating 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 subtenant 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 Ayyar, J., in Civil Revision Petition Number 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 Moopan (1959) I M.L.J. 25. At page 27, the learned Judge observed as follows:

I am unable to accept the contention of Mr. Krishnaswami Aiyar, 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 Aiyar 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, Civil Revision Petition Numbers 1888 and 1889 of 1958, Ramachandra Ayyar, 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 landlord and the assignee of a lessee.

In Civil Revision Petition Number 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 1956-57 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 u/s 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 Civil Revision Petition 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. 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

[Halbury''s Laws of England, volume 23, page 477, foot-note (t)]. 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 [Taylor v.

Gillott (1875) L.R. 20 Eq. 682]. If the head-lease contains a proviso for re-entry on breach of covenant 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. Smith (1876) 2 Ch. D. 235, 253:

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 clams 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 claims under the lessee.

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 leasehold 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 Solomon v. Orwell [1954] 1 All. E.R. 874, is somewhat instructive in this connection. In that case the statutory tenant of a

dwelling house within the Rent Restrictions Act let to a subtenant three rooms in the dwelling house with the right to share with the tenant the

kitchen-scullery. The statutory tenant having vacated the 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 sub-tenant, had the same right given to her u/s 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 it 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. 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 heirs. 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 by 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''.

In Simms v. Registrar of Probates [1900] A.C. 323, 335 Lord Hobhouse observed thus:

...where there are two meanings each adequately satisfying the language 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...it is more probable that the

legislature should have intended to use the word in that interpretation which least offends our sense of justice.

In The Queen v. Overseers of Tonbridge (1884) 13 Q.B.D. 339, 342, Brette M.R., said:

If the inconveniences is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you

read it in a manner in which it is capable, though not 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 Krapa Rangaya v. Ramineni Tatayya (1960) 2 An. W.R. 53. 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 u/s 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. 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 aero and 60

cents and that Rangayya is the cultivating tenant under Tatayya in respect of 9 acres 60 cents. It might be open to Tatayya to take proceedings u/s

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 Khadir v. Rajagopala ILR [1956] Mad. 830 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 u/s 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 Karumbayiram Pillai Annadhana Dharma Charities Nachiarkoil and Others Vs. Chinnaswami Padayachi and Another, , 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 Ayyar, JJ., in the decisions already noted.

The Civil Revision Petition is allowed and the decision of the Revenue Court, Tiruchirappalli in D.A. No. 288 of 1956, is set aside and the said

application is directed to be dismissed with costs throughout.