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The Official Receiver and anr. Vs. Sakkuwar Bai Ammal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1949)2MLJ425
AppellantThe Official Receiver and anr.
RespondentSakkuwar Bai Ammal
Cases Referred and Vyrapemmal v. Alagappa
Excerpt:
- - ) and said that the judicial committee had clearly and emphatically laid down that a holding can be sold only by a landholder who had a subsisting interest in the estate. , remarked that, after having considered his previous opinion that a landholder who had ceased to be a landholder regarding the tenant could not bring the holding for sale in a revenue court, he was of opinion that his former opinion was unsound as it failed to give sufficient weight to the differences both in language and policy found on a comparison of the provisions of the bengal tenancy act and the madras estates land act......has ceased to exist, cannot execute the decree in a revenue court and realise his arrears in a revenue sale and should execute it in a civil court. the lower courts relied on the rulings in sundaram ayyar v. kulathu ayyar (1915) 29 m.l.j. 505 : i.l.r. 39 mad 1018 and suramma v. suriyanarayana fagapathiraju (1918) 33 m.l.j. 443 : i.l.r. 42 mad 114. in sundaram ayyar v. kulathu ayyar (1915) 29 m.l.j. 505 : i.l.r. 39 mad 1018, it has been held by a bench of this court that the provisions of the madras estates land act do not empower a person who was a lessee of an estate, to take proceedings after the expiry of his lease to sell the tenant's holding for arrears of rent due for a fasli covered by the period of his lease, though it was held also that a person to whom arrears are due is a.....
Judgment:

Panchapakesa Ayyar, J.

1. The only point for determination in this second appeal is whether the lower Courts went wrong in holding that a landholder who had obtained a decree against a tenant, under the Madras Estates Land Act, but has afterwards ceased to be his landholder, and the relationship between the landholder and tenant has ceased to exist, cannot execute the decree in a Revenue Court and realise his arrears in a revenue sale and should execute it in a Civil Court. The lower Courts relied on the rulings in Sundaram Ayyar v. Kulathu Ayyar (1915) 29 M.L.J. 505 : I.L.R. 39 Mad 1018 and Suramma v. Suriyanarayana Fagapathiraju (1918) 33 M.L.J. 443 : I.L.R. 42 Mad 114. In Sundaram Ayyar v. Kulathu Ayyar (1915) 29 M.L.J. 505 : I.L.R. 39 Mad 1018, it has been held by a Bench of this Court that the provisions of the Madras Estates Land Act do not empower a person who was a lessee of an estate, to take proceedings after the expiry of his lease to sell the tenant's holding for arrears of rent due for a fasli covered by the period of his lease, though it was held also that a person to whom arrears are due is a land-holder notwithstanding the fact that his estate has terminated, but that the law does not give him a first charge on the holding or the crops thereon, and he can merely distrain the moveable property or the trees in the holding of the defaulter and that he is not entitled to attach the holding. In the course of his judgment, Seshagiri Ayyar, J., relied on the ruling of the Privy Council in Forbes v. Maharaj Bahadur Singh (1914) 27 M.L.J. 4 : L.R. 41 L.A. 91 : I.L.R. 468 Cal. 926 (P.C.) and said that the Judicial Committee had clearly and emphatically laid down that a holding can be sold only by a landholder who had a subsisting interest in the estate. In Suramma v. Suriyanarayana Jagapathirazu (1918) 33 M.L.J. 443 : I.L.R. 42 Mad 114 Phillips and Kumaraswami Sastri, J., have held that a sale in a Revenue Court passes the property to the purchaser free of encumbrances except those specified in Section 125 of the Madras Estates Land Act. Therefore, it is apparent that if the appellant is allowed to bring the holding to sale in a Revenue Court, he will get an undoubted advantage and priority over the present landholder (the appellant has ceased to be a landholder after 1940) regarding his rent for all the years from 1940 till now, which I do not consider the Estates Land Act intends to give to a person regarding whom the relationship between landholder and tenant has ceased. In Krishnapada Chatterjee v. Manada Sundari Ghosh I.L.R. (1932) Cal. 1202, seven judges of the Calcutta High Court have held, following the Privy Council ruling in Forbes v. Maharaj Bahadur Singh 3, that only a landlord who has not parted with his interest, and regarding whom the relationship of landlord and tenant subsists, can bring the holding to sale in a Revenue Court. They specifically held that the person seeking to execute a decree by sale of the tenure or holding must have the landlord's interest vested in him and that the right to bring the tenure or holding to sale exists only so long as the relationship of landlord and tenant exists; and that it is the existing landlord alone who can execute the decree in a Revenue Court. In Suryanarayana v. Ramachandrudu (1932) 37 L.W. 655, Anantakrishna Ayyar, J., relied on the above ruling of the seven Judges of the Calcutta High Court and held that only so long as the relationship of landlord and tenant existed could a decree for rent be executed in a Revenue Court by bringing the holding to sale. He remarked further:

It should also be kept in mind that such decrees for rent could also be executed by the ordinary civil courts in which case, it has been held, that the sales would not be free of encumbrances.... The relationship of 'landholder and ryot' should also (it has been held) continue till actual sale by the Revenue Court.

In Vyraperumal v. Alagappa (1931) 62 M.L.J. 31 : I.L.R. 55 Mad. 468, Waller and Krishnan Pandalai, JJ., have held that a landholder can bring a holding to sale only so long as the relationship of landholder and ryot continues. In that case it has been specifically remarked that the decision of the Privy Council in Forbes v. Maharaj Bahadur Singh, (1914) 27 M.L.J.4 : L.R. 41 LA. 91 : I.L.R. 468 Cal. 926 (P.G.) already referred to, has been understood in this Court in Venkata Lakshmamma v. Seethayya : (1920)39MLJ30 , as applicable to cases under the Madras Estates Land Act and as meaning that the claim of first charge is available only to a landlord and while the relationship of landlord and tenant subsists.

2. As against all this imposing array of decisions, Mr. Subramaniam Pillai, for the appellant, relies on three facts. The first is certain observations of Krishnan, J., and Sadasiva Ayyar, J., in Venkata Lakshmafnma Gam v. Achi Reddib : AIR1921Mad152 Krishnan, J., remarked that the Bengal Tenancy Act differed in some respects from the Madras Estates Land Act and especially regarding the definition of a 'landholder' and the right of a landholder to bring a holding to sale. But he did not give any decision that a landholder in respect of whom the relationship as landholder and tenant had teased could still bring the holding to sale in execution in a revenue Court. Sadasiva Ayyar, J., remarked that, after having considered his previous opinion that a landholder who had ceased to be a landholder regarding the tenant could not bring the holding for sale in a revenue Court, he was of opinion that his former opinion was unsound as it failed to give sufficient weight to the differences both in language and policy found on a comparison of the provisions of the Bengal Tenancy Act and the Madras Estates Land Act. He also did not give any decision that a landholder who had ceased to be a landholder in respect of the tenancy could attach the holding and bring it to sale in a revenue Court. He only expressed his opinion. In other words, his remarks were obiter regarding the actual question in issue in this case, viz., whether such a landholder can bring the holding to sale in a revenue Court in execution after he had ceased to be the landholder of the tenant in question. These remarks of Krishnan and Sadasiva Ayyar, JJ., were made in 1921, and the decisions in Suryanarayana v. Ramackandrudu (1932) 37 L.W. 655 and Vyrapemmal v. Alagappa (1931) 62 M.L.J. 31 : I.L.R. 55 Mad. 468, were rendered in 1932 and 1931 respectively, reinforcing the former view.

3. It is obvious that even if I differ from the views expressed in Sundaram Ayyar v. Kulathu Ayyar (1915) 29 M.L.J. 505 : I.L.R. 39 Mad.1018, Venkata Lakshmamma v. Seethayya : (1920)39MLJ30 , Suryanarayana v. Ramachandrudu (1914) 27 M.L.J. 4 : 41 I.A. 91 : I.L.R. 41 Cal. 926 (P.C.), and Vyrapemmal v. Alagappa (1931) 62 M.L.J. 31 : I.L.R. 55 Mad. 468, the decisions by three Benches and a single Judge of this Court, I would not be entitled to decide differently now but would be compelled to refer the matter to a Full Bench, as none of those decisions have been formally overruled or even specifically dissented from. But I also agree with the views of the three Benches and the single Judge in question, and so see no reason to refer the matter to a Full Bench. It seems to me clear that the policy of the Madras Estates Land Act is to give the landholder who is the present land-holder in respect of the holding and ryot preference regarding the recovery of of his rent free from all encumbrances and charges for arrears.

4. Section 125, as amended, makes this still clearer as it makes the sale proceeds not subject to any arrears of rent due in respect of the holding before the date of sale or to interest on such arrears whether a decree has been obtained or not for such arrears. Section 127, as amended, also gives the landholder who brings a holding to sale priority in respect of his decree amount after the poundage and costs and expenses of the sale have been deducted. So the consequence of allowing the appellant to bring the holding to sale in a revenue Court will be to enable him to get a priority for his dues under his decree over the present landholder regarding his claims for rent from 1940 onwards when the appellant ceased to be the landholder. This I do not consider that the Estates Land Act will permit. So, I respectfully agree with the views expressed in the three Bench rulings and the single Judge's ruling referred to above.

5. Mr. Subramania Pillai contends that, in view of the amendment to Sections 125 and 127 of the Madras Estates Land Act, the views expressed in those four rulings have become obsolete and that now the appellant will be free to bring the holding to sale in the revenue Court and realise his decree dues. I cannot agree As already stated the amendments of Sections 125 and 127 have only emphasised the benefit accruing to a landholder bringing a holding to sale in a revenue Court and increased the weight of priority given to him. These amendments have, in my opinion, reinforced the strength of the rulings in the above four cases rather than diminished their strength.

6. In this view, I consider that the lower Courts were right in rejecting the appellant's contentions and referring him to the civil Courts for executing his decree, as in those Courts the sale would not be free from all encumbrances, as in a revenue sale, and he would not get the peculiar advantages vouchsafed to him under a revenue sale.

7. This appeal deserves to be and is hereby dismissed with costs. (Leave asked for and granted).


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