Subbu Reddiar and Another vs The District Revenue Officer and Another

Raju, J.—The above writ petition has been filed for a writ of certiorari to call for the records and quash the proceedings of the first

respondent in R.Dis. No. 189131 of 1982, dated 7.12.1983.

The petitioners, in the affidavit filed in support of the writ petition, claim that they are owners of the land measuring about 2.17 acres in S. No.

364(6) of Balakrishnapatti Village of Thuraiyur Taluk, Tiruchirappali District, and that the second respondent claiming himself to be a tenant in

respect of an extent of 0.85 acre out of the said 2.17 acres moved the authorities under the Tamil Nadu Agricultural Lands Record of Tenancy

Rights Act, 1969 (hereinafter referred to as ''the act'') to have his name recorded as a tenant. The Tahsildar, Musiri, before whom the application

was filed, is said to have rejected the application on 10.5.1982. The appeal filed before the Revenue Divisional Officer, Musiri also appears to

have been rejected by the Appellant Authority on 18.10.1982. Thereupon, the second respondent filed a revision u/s 7 of the Act and the

revisional authority, by the impugned proceedings dated 7.12.1983 set aside the orders of the authorities below and directed the registration of the

name of the second respondent as tenant in the tenancy record relating to the land in question. Aggrieved, the owners of the land have filed the

above writ petition.

Mr. T.V. Ramanujam, learned Counsel appearing for the petitioners, contended that the concurrent orders of the Original and appellate

authority did not call for any interference at all and that it was wrong on the part of the first respondent, revisional authority to have interfered with

such concurrent orders of the authorities below on pure questions of fact. The learned Counsel also contended that the second respondent cannot

come under the definition of cultivating tenant as defined u/s 2(aa) of the Tamil Nadu Cultivating Tenant''s Protection Act, 1955, the definition of

which gets attracted for consideration of the claim of the tenant, having regard to the provisions contained in Section 2(8)(i) of the Record of

Tenancy Act. To sustain the said plea, the learned Counsel contended that the second respondent, can neither claim the right of a tenant on the

ground that he is the son of the sister of late Konda Mooppan''s wife who was the tenant, nor for the reason that he was himself assisting and

participating in the cultivation of the lands with the deceased Konda Mooppan.

Mr. M. Sathyanarayanan, learned Counsel for the second respondent, vehemently contended that the order of the revisional authority is well

justified on the materials and for the reasons relied upon by the said authority and that this Court exercising jurisdiction under Article 226 of the

Constitution of India may not be pleased to interfere with the order of the first respondent. The revisional authority, as could be seen from the

order under challenge, has chosen to give relief to the second respondent on the ground that the petitioners have not proved personal cultivation by

sufficient records, that the fact that the second respondent failed to produce records like manure cards or rent receipts does not militate against the

claim of the tenant and that the claim of the second respondent as a tenant has to be recognised on the ground that the second respondent was

jointly looking after the cultivation of the lands in question and was also said to be living as one family when Konda Mooppan was alive. The

revisional Authority was also of the view that it is not stated in the definition of the provision contained in Section 2(aa) of the Tamil Nadu

Cultivating Tenants Protection Act, that an heir should be either of Class I or Class II.

I have carefully considered the submissions of the learned Counsel appearing on either side. In my view, the order of revisional authority suffers

from serious infirmities, in that the first respondent has wholly misconstrued the relevant provisions of law and also exceeded its limits of

consideration while exercising powers as revisional authority u/s 7 of the Record of Tenancy Act. Section 2(aa) of the Tamil Nadu Cultivating

Tenarits Protection Act, defines a ""cultivating tenant"" as hereunder:

Definitions.'' In this Act, unless the context otherwise requires--(aa) ''Cultivating tenant''-(i) Means a person who contributes his own physical

labour or that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement express or implied; and

(ii) Included--

(a) any such person who continues in possession of the land after the determination of the tenancy agreement;

(b) the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land;

(c) a sub-tenant if he contributes his own physical labour or that of any member of his family in the cultivation of such land; or

(d) any such sub-tenant who continues in possession of the land notwithstanding that the person who sublet the land to such sub-tenant ceases to

have the right to possession of such land; but

(iii) does not include a mere intermediary or his heir.

It could be seen from the above provisions, that even an heir of a deceased tenant could claim benefits, only if the heir contributes his own physical

labour or that of any member of his family in the cultivation of such lands and consequently it has to be established by any one claiming to be an

heir for claimingbenefits of the Act that he is an heir and that he contributed his own physical labour or that of any member of the family in the

cultivation of such lands. The mere fact that a person who cannot otherwise be classified as an heir, was assisting the erstwhile tenant cannot confer

him with any tenancy rights in his own right or as a successor in interest of the erstwhile tenant. At best, such person can be a mere collaborator

and even if the plea in that regard is established it is to be seen that in Sathu Konar Vs. Duraisami, , this Court has held that a mere collaborator, a

person who renders assistance to a cultivating tenant, would not, by himself, by reason of such collaboration or assistance, become a cultivating

tenant himself. That apart on the materials on record also, I do not find any positive evidence or substantive proof of such joint cultivation or

collaboration.

That apart, the claim of the second respondent has to fail on the simple ground that the second respondent cannot claim himself to be an heir of

the deceased Konda Mooppan. The first respondent committed an error in not properly adverting to this aspect, by merely stating in his order that

the definition of cultivating tenant does not concern itself with any other class either class I or class II heir, little realising that he will not be an heir

under either of those categories of heirs even, and that such consideration is necessary and vital before the claims of the second respondent can be

countenanced as an heir of the deceased Konda Mooppan. As a matter of fact, a Division Bench of this Court in Sri Annamalainathaswamy

Devasthanam Anthanapettai by its Executive Officer v. Nagammal 1978 T.L.N.J. 531, had occasion to advert to this aspect of the matter and it

was held that though the definition of cultivating tenant is an inclusive one and includes an heir of the person who is cultivating the land belonging to

another, it provides that both the person and his heir or of any member of the family should contribute physical labour in the cultivation of the lands.

In S. Gomathy Ammal and Anr. v. Sivakasi Hindu Nadars Girls'' School Committee through its Secretary 1977 T.L.N.J. 374, a learned single

Judge of this Court, while construing the provision of Section 2(aa) of the Tamil Nadu Cultivating Tenants Protection Act, held in the context of a

claim from an illegitimate son as to whether he can be recognised as an heir for purposes of claiming benefit as a cultivating tenant, that illegitimate

children cannot be considered to be related to legitimate kinship and as such would not be eligible to claim tenancy rights as an heir. In coming to

such a conclusion, the learned Judge has placed reliance upon the provisions of Hindu Succession Act to ascertain the position relating to the heirs

who can be taken into account even for the purposes of the Cultivating Tenant''s Protection Act. Mr. Ramanujam invited my attention to a decision

of another learned single Judge in A. Kuppuswamy v. Government of Tamil Nadu 90 L..W. 13, where the word ''heir'' employed in the Tamil

Nadu Village Offices Services Rules, 1970 was construed with reference to the provision of Section 8 of the Hindu Succession Act.

Consequently the claim of the second respondent as an heir cannot be countenanced, unless he can be shown to be one of the heirs for the

purpose of law relating to succession. The question of heirship is to be always determined with reference to the'' personal law relating to succession

of the parties claiming such benefits. In respect of Hindus non-testament any law relating to succession is governed by the Hindu Succession Act,

1956, Scc.3(f) defines that an, heir means any person, male or female, who is entitled to succeed to the property of an intestate under this Act. It is

not the claim of any one particularly of the second respondent that he was given any rights to succeed the deceased Konda Mooppan by any

testament and consequently the claim has to be considered in the light of the provisions contained under the Hindu Succession Act, 1956, A

perusal of Section 8 of the said Act, with the Schedule to the Act would go to show that on the claimed relationship of the second respondent, he

cannot be considered to be an heir of either class I or Class II and consequently the claim of the second respondent could not be recognised as an

heir of the deceased cultivating tenant. The order of the first respondent is liable to be set aside for the reasons stated above, alone. That apart, I

am of the view that the first respondent without proper or due application of mind, has chosen to interfere on mere surmises with the well

considered findings of the original and appellate authority that the second respondent was not entitled to claim benefits as a tenant so as to entitle

him to be recorded as a tenant in respect of the property claimed by him under the provisions of the Record of Tenancy Act. For all the reasons

stated above, the order of the first respondent is hereby set aside and the writ petition shall stand allowed as prayed for, but in the circumstances,

there shall be no order as to costs.