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Judgment
Arnold White, C.J.—In Second Appeals Nos. 1095 and 1096 of 1900.--The construction of the last paragraph of Section 10 of the Rent
Recovery Act, 1865, seems to me to be clear. The section enacts that if within a given period from the date of the Collector''s judgment the
defendant does not accept the patta as approved or amended the defendant may be ejected. The word ""accepted"" implies an offer and the use of
the word ""default"" also shows that the Legislature intended there should be an offer as a condition precedent to an order for ejectment being
obtained. In the case of Court of Wards v. Darmalinga ILR 8 Mad. 2 the suit was for rent. I cannot adopt the view that the judgment of the
Collector amending the patta constitutes a sufficient tender to entitle the landlord to eject the tenant and if the decision is to be regarded as an
authority for this proposition, I respectfully dissent from it. The provision in Section 10 is a penal one and ought to be construed strictly. It seems to
one impossible to adopt the construction for which the plaintiff contends without doing violence to the express words of the section. The question
of the right to eject when there had been no offer of the amended patta was not discussed in the case of Munisami Naidu v. Perumal Reddi ILR 23
Mad. 616. I think our answer to the question which has been referred to us should be in the negative.
In Second Appeals Nos. 1271 and 1272 of 1900.--In these cases it was contended that where the Collector is of opinion that the patta is a
proper one and passes a judgment directing the defendant to accept it, an offer of the patta after judgment is not a condition precedent to
ejectment. The argument was that whatever may be the true view when the Collector is of opinion that the patta tendered is not a proper one and
decides, under paragraph 4 of the section, what patta ought to be offered and passes a judgment ordering the defendant to accept it, when the
Collector is of opinion that the patta is a proper one and passes a judgment, under paragraph 3 of the section, directing the defendant to accept it,
the defendant is bound, as from the date of the judgment, to accept the patta which has already been offered to him and consequently no tender
after judgment is required. I am certainly not disposed to apply this doctrine of constructive offer by relation back in construing the plain words of a
penal enactment. The last paragraph of Section 10 draws no distinction between a patta as ""approved"" and a patta as ""amended"" and I think the
word ""accepted"" must be construed in both cases in the same way as indicating that an offer after judgment must be made by the landlord before
he can eject.
I think our answer should be in the negative.
Bhashyam Ayyangar, J.
After a full consideration of the arguments advanced by the learned pleaders for the landlord in these cases, I see no reason to change the
opinion which I have formed in the Order of Reference made in Second Appeals Nos. 1095 and 1096. I shall only notice the special arguments
which have been advanced before the Full Bench.
The position taken on behalf of the landlord is that in a suit instituted u/s 9 of the Bent Recovery Act, if the Collector be of opinion that the patta
which had been tendered to the tenant is a proper one, it is not necessary u/s 10 that the landlord should, after judgment, make a fresh tender of
the patta but that the tenant should suo motu signify to the landlord his acceptance of the patta which had been tendered before suit but which he
then did not accept, and should execute a muchilika in accordance therewith and that if he neglects to do so within ten days from the date of the
Collector''s judgment, the Collector is bound to eject him on application made to him by the landlord. If in such a suit the Collector should be of
opinion that the patta which had bean tendered is not a proper one, he should decide what patta ought to be offered by the landlord, but that even
in such a case there need be no tender, after judgment, by the landlord, of a patta as settled by the Collector but that the judgment itself operates
u/s 72 as tender of such an amended patta and that if the tenant neglects for ten days to signify to the landlord his acceptance of the offer made by
the judgment and to execute a muchilika in accordance therewith, the Collector shall pass an order for ejecting the tenant on application made to
him by the landlord.
It is urged that the execution by the tenant of a muchilika in accordance with the terms of the patta as approved or amended by the Collector
and the delivery of the same to the landlord will amount to an ""acceptance"" of the patta. In order to realise the full force of the argument, I put to
the learned pleader for the landlord in Second Appeals Nos. 1271 and 1272 the specific question as to whether a tenant would incur a forfeiture
of his holding u/s 10 if, after judgment which approved of the patta tendered to him, he communicates to the landlord his acceptance of the terms
of the patta and desires him to send him the patta, but the landlord does not do so and the tenant does not execute a muchilika and send the same
to the landlord within ten days. His answer was that he would incur the forfeiture unless it could be shown that ha could not possibly execute a
muchilika by reason of his not having been furnished by the landlord with the patta. It can scarcely ever be held that the tenant would not be in a
position to deliver the muchilika by reason of the landlord not sending him the patta after judgment; for the patta which had been tendered or a
copy thereof would of course be an exhibit in the suit and the judgment would show that it had been approved by the Collector. If in cases in
which the Collector has not approved of the patta, but settled what it ought to be, the contention be upheld that the judgment itself operates as a
tender of the patta as thus amended, it will follow that the landlord need not tender the tenant such an amended patta even if he applies to him for
it. The argument therefore amounts to this, viz., that in no case need a landlord grant a patta to the tenant after judgment, even if the tenant applies
to him for it, but that the tenant will be ejected if he fails to execute and deliver a proper muchilika within ten days from the date of judgment.
The whole argument, in my opinion, proceeds upon a misapprehension of the scheme and policy of the Rent Recovery Act as to ""pattas and
muchilikas"" and of the meaning of the word ""accept"" in Section 10 of the Act. Pattas and muchilikas are documents, the former being executed by
the landlord and the latter by the tenant which, at the option of the landholder, shall be a counter-part of the patta or a simple engagement to hold
according to the terms of patta (vide Section 4). The policy of the Act is that, as far as practicable, these documents should be exchanged between
the landlord and the tenant unless both parties shall have agreed to dispense with them (Section 7). If a tenant does not accept a patta and execute
a muchilika, the landlord tenders to the tenant such a patta as he is bound to accept (vide Section 7) and the tender is made by delivering a copy to
the tenant or to some adult male member of his family at his usual place of abode or to his authorised agent or where such service cannot be
effected, by affixing a copy of the patta on some conspicuous part of his last known residence or on some conspicuous part of the land to which it
refers (vide Section 39). Pattas and muchilikas should not be confounded with ""proposal and acceptance"" as they are understood in the Law of
Contracts. Each is a formal record in writing of the terms of a pre-existing tenancy, whether such terms be the result of a contract or otherwise.
Such documents as a general rule are exchanged annually, though they need not necessarily be for a term of one year only--in which latter case
they need not be exchanged annually. The exchange of these documents necessarily implies that the tenant receives the patta and the landlord the
muchilika and the provisions of Section 10 are in furtherance of this policy of the Act by directing the tenant to accept the patta as approved or
amended by the Collector and to deliver to the landlord a corresponding muchilika. If a fresh tender after judgment and acceptance of the patta so
tendered were not intended by the Legislature the judgment would be only one directing the defendant to execute and deliver a muchilika in
accordance with the patta as approved or amended by the judgment. There would really be no object in directing the defendant to ""accept"" the
patta if such acceptance means his signifying to the landlord his acceptance of the terms of the patta which had been tendered to him before suit.
When the judgment itself declared that the terms of the patta are binding upon the tenant, why should the Legislature require him to signify his
assent thereto. The argument apparently proceeds on the supposition that the patta contains the terms of a proposal made by the landlord, that
there is a continuing offer by the landlord of those proposals both before and after judgment and that the tenant fulfils the obligation imposed on him
by the judgment by signifying to the landlord his acceptance of those terms and executing a muchilika in accordance therewith. The word accept ""in
Section 10 really means ""receive"" which, it will be seen, is the word used in Section 8 when it refers to the grant by the landlord of ""such a patta as
his tenant was entitled to receive."" The tenant of course cannot receive a patta after judgment, unless the landlord then tenders it to him, whether
such patta be the one which was tendered to him before the suit but was refused or a patta as amended by the Collector. He then executes a
muchilika in accordance therewith and thus exchange of pattas and muchilikas is ensured at the risk of the tenant forfeiting his holding if he does not
receive the patta and execute the muchilika within ten days from date of judgment.
The very definition of ""muchilika,"" viz., that it may be a counterpart of the patta or a simple engagement to hold according to the terms of the
patta, at the option, not of the tenant, but of the landlord, is decisive of the question under consideration. If the landlord is not to stir in the matter
after judgment had been given approving the patta as originally tendered or amending the same, how is the tenant to know whether the muchilika to
be executed by him is to be a counter-part of the patta or simply an engagement to hold according to the terms of the patta. Even if there was
nothing in the section about the acceptance of a patta subsequent to judgment and if the judgment is to be one simply directing the defendant to
execute a muchilika in accordance with the patta as approved or amended by the Collector, I should be prepared to hold that the landlord should
tender a draft muchilika to the tenant within a reasonable time before the expiration of ten days and that if he does not do so, the tenant will not
forfeit his holding by reason of his not executing and delivering a muchilika.
Section 72 in my opinion strongly supports the above interpretation of Section 10. Its object is to enable the landlord to recover arrears of rent
notwithstanding that the tenant has not accepted the patta subsequent to judgment, and executed a muchilika in accordance therewith and
notwithstanding that he has thereby incurred a forfeiture of the holding. It declares that if the tenant refuses to execute the muchilika, the judgment
shall be evidence of the amount of rent due by him and a certified copy of the judgment shall take effect as a muchilika executed by the tenant. u/s
10 the landlord has to tender the patta and the draft muchilika,--whether it be at his option a COUNTER-PART v. not and which clearly is by of
that the from for in under time sufficient The it made a as to on any case judgment or Act engagement hold according terms patta--within
reasonable before expiration ten days date referred refusal execute muchilika behalf use word ?refusal? shows mere ?omission? ?neglect? tenant
without demand requisition part landlord. In immediately preceding 71 corresponding phrase ?refuse delay? incases has been against landlord
delivery tenant. Whether purposes realizing arrears rent given alone constitutes 72 Rent Recovery tender patta amended Collector Section 10 held
Court Wards Darmalinga>I.L.R. 8 Mad. 2, a point which does not arise for decision in these cases, there can be no doubt that u/s 7 proceedings
for the recovery of arrears of rent whether by a suit or by summary proceedings under the Act may be validly taken quite independently of
Sections 10 and 72 of the Act if the patta tendered to the tenant before the institution of a summary suit u/s 9 was such as the tenant was bound to
accept; if the same has been approved by the Collector u/s 10 the landlord need not prove again in his suit or proceedings for the recovery of rent
that the patta tendered by him was such as the tenant was bound to accept nor need he prove a further tender of patta after judgment.
I would therefore unhesitatingly answer the question referred to the Full Bench in the negative.
Moore, J.
I concur. I have nothing to add to what has been set forth in the order of reference in Second Appeals Nos. 1095 and 1096 of 1900.