1. The City Civil Judge's order so far as he referred the petitioners to separate proceedings for a declaration that they were entitled to whatever rights their mother possessed at the time of her death from her status as tenant cannot be supported. They were entitled to have the question whether the interest of their mother had devolved on them decided by the Court to which they made their application. Another obstacle to appellants' success however exists. The application was one under Section 9 by persons claiming to be tenants under Madras Act III of 1922. Section 9 speaks only of tenants 'against whom a suit in ejectment has been instituted.
2. In this case a decree was passed against petitioners' mother in the City Civil Court on 13th August, 1920 and was confirmed on appeal in this Court on 7th February, 1922, that is, before the Act came into force.
3. The general frame of the Act, including Section 10, makes it clear that Section 9 was not intended to enable tenants to apply for sale of the land to them under this section after the ejectment suit, to which they were parties, had been decreed.
4. Section 10 permits Sections 4, 5, 6 and 8 to be applied to suits in which decrees had been passed for ejecting tenants before the Act came into force but not executed. Section 5 provides the manner in which the amount of compensation to be paid to tenants is to be determined and subsequently modified. Section 6 provides for the determination of a reasonable rent when the landlord cannot or will not pay compensation. Section 4 deals with the effect of suits for ejectment being dismissed, and Section 8 with the effect of rents being determined.
5. There is a noticeable omission of Section 9 from mention in Section 10. It is suggested that this may be due to Section 9 having been inserted in the Act after the other sections had been incorporated, and that but for an oversight Section 9 would have found mention in Section 10.
6. Whatever may be the explanation, the Act, as it has been enacted, gives no retrospective effect to Section 9. Consequently where a decree has been passed before the Act came into force for the ejectment of a tenant, it is too late for the tenant to apply to the Court that passed the decree for an order directing, the landlord to sell the land to him. On this ground the application must fail and the appeal is therefore dismissed with costs.
Venkalambba Rao, J.
7. I am also of the opinion that the appeal should be dismissed with costs.
8. The suit was in ejectment and the City Civil Court passed a decree on the 13th August, 1920 and it was confirmed in appeal by the High Court on the 7th February, 1922. The Madras City Tenants' Protection Act (Act III of 1922), came into operation on a subsequent date. See Section 81 of the Government of India Act, 1915. The defendant was a Mahomedan woman. Her daughters applied to the City Civil Court on the 27th February, 1922, some time after the Act came into force, for an order under Section 9 to direct the plaintiff to sell the land on which the superstructure stands for a price to be fixed by the Court. The learned City Civil Judge dismissed the application on the ground that the petitioners should get their title declared to succeed to their mother, apparently being of the opinion that he could not decide in the proceedings before him, the question as regards their title to represent the deceased defendant. In this he was obviously wrong. It was his duty to have adjudicated on their title if there was any contest regarding it. The defendant was either a tenant liable to pay rent or a person who continued in possession after the termination of the tenancy. See Section 2 Clause (4). The legal representatives of the defendant would be entitled to the same rights as herself.
9. But the appeal may be disposed of on another ground which is fatal to the appellants. Section 9 refers to a tenant against whom a suit in ejectment has been instituted. The words has been are material. I do not think a tenant, against whom a decree for ejectment was passed prior to the coming into force of the Act, can apply under Section 9. Section 10 places the matter beyond doubt. It refers to suits 'which are pending' or in which decrees for ejectment... have been passed but have not been executed before the coming into force of this Act. A distinction is made between suits which are merely pending and those in which decrees in ejectment have been passed. Section 10, while stating that Sections 4, 5, 6 and 8 shall apply to suits which are pending or in which decrees for ejectment have been passed, makes no reference to Section 9.
10. I therefore hold that the appellants are not entitled to make an application under Section 9.