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Arumugha Gounder Vs. Ardhanari Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 40 of 1971, S.A. 1482 of 1965, Civil Revn. Petn. No. 2516 of 1966 and C.M.
Judge
Reported inAIR1975Mad231
ActsTamil Nadu Cultivating Tenants Protection Act, 1955 - Sections 2 and 3; Code of Civil Procedure (CPC), 1908 - Order 40, Rule 3
AppellantArumugha Gounder
RespondentArdhanari Mudaliar and ors.
Appellant AdvocateS. Sethuratnam and ;S. Balasubramaniam, Advs.
Respondent AdvocateK. Sarvabhauman, ;K. Raman and ;N. Savamani, Advs.
DispositionAppeal dismissed
Cases ReferredIn Chandrasekharan v. Kuniuvanniar. L. P. A. No.
Excerpt:
.....protection act (xxv of 1955)--receiver of property appointed by court--letting into possession of land tenant such tenant is not entitled to claim benefits of act against owner of land.;civil procedure code (act v of 1908) order xl, rule 1--appointment of a receiver by court pending litigation between parties--functions and powers of such receiver.;on the question raised as to whether a tenant let into possession of land and incidental immovable property by a receiver appointed by court pending a suit would be entitled to protection under the tamil nadu cultivating tenants protection act (xxv of 1955),;held, if literal application of the tamil nadu cultivating 'tenants' protection act is made, it may prima facie appear that a tenant let into possession by a receiver would be entitled to..........appointed by court pending a suit would be entitled to protection under the tamil nadu cultivating tenants protection act, the suit was brought by the tenant for an injunction, out of which the second appeal arises. the lease in his favour was in 1957 and it was to enure after renewal every year upto november 15. 1961. in that vear, the receiver was discharged, but the tenant continued to hold over and cultivate the land. when the true owner sought possession, the plaintiff brought the suit for a preventive injunction from disturbance. his ground was that he having been let into possession by the receiver as a tenant, after expiry of the term of the lease he continued to be in possession and cultivated the land, and that as such he would be a cultivating tenant by operation of law and.....
Judgment:
1. This reference raises an interesting question as to whether a tenant let into possession of land and incidental immovable property by a Receiver appointed by Court pending a suit would be entitled to protection under the Tamil Nadu Cultivating Tenants Protection Act, The suit was brought by the tenant for an injunction, out of which the second appeal arises. The lease in his favour was in 1957 and it was to enure after renewal every year upto November 15. 1961. In that vear, the Receiver was discharged, but the tenant continued to hold over and cultivate the land. When the true owner sought possession, the plaintiff brought the suit for a preventive injunction from disturbance. His ground was that he having been let into possession by the Receiver as a tenant, after expiry of the term of the lease he continued to be in possession and cultivated the land, and that as such he would be a cultivating tenant by operation of law and entitled to protection from dispossession under the Act.

2. For the appellant strong reliance was placed on Serang Abdul Khadir v. Raiagopala Pandaravar, (1956) 1 Mad LJ 34 which was concerned with a tenant under the Tanjore Pannaiyal Protection Act. The lands in that case belonged to a Devasthanam. A Receiver was appointed by Court under Order XL. Rule 1 of the Code of Civil Procedure who granted a lease in favour of two persons for a certain period. The Devasthanam took possession if the lands on the expiry of the lease granted by the Receiver and cultivated the land itself. Respondents 1 to 8 before the Court were sub-lessees from the original lessees. For the year 1952-53, the Devasthanam, leased out the lands to the appellant there. The question before the Court was who was entitled to the benefits of the Act. Whether it was the appellant or respondents I to 8. Those respondents filed an application under Section 6(2) of the Tanjore Pannaiyal Protection Act successfully and possession was restored to them. An appeal arising out of it failed, and, thereafter, a petition under Article 226 of the Constitution came before Ranagopalan, J. The prayer there was for a right to have the order of the Revenue Divisional Officer quashed on the ground that the respondents would not be entitled to the rights conferred by the provisions of Section 6 (2) of the Act. The appellant in the appeal denied that the respondents would be entitled to any such right because of two reasons. One was that they were sub-lessees under a lease from a Receiver, and a Receiver could not be deemed to be a "land owner" within the meaning of the definition of that term in Section 2 (g) of the Act. The other reason was that respondents 1 to 8 were not "cultivating tenants" within the meaning of the term in Section 2 (g) bee cause they were not in possession under a tenancy agreement with the land owner, to wit, the Devasthanam, and their only agreement, was with the lessees. Rajagopalan. J. overruled those objections. The same two grounds were reiterated before the then learned Chief Justice and Pan-chapakesa Aiyer, J., but not without success. They were of opinion that a Receiver virtually represented the real owner of the property in his possession, and that he would, therefore, be the owner for the time being of the property and would fall within the definition of "land owner" in Section 2 (a) of the Tanjore Pannaiyal protection Act. 1952. They referred to the definition of the words "cultivating tenant" in Section 2 (d) of the Act and to the fact that a tenancy agreement, express or implied, did not indicate that such agreement must be with the land owner as defined in Section 2 (g) as persons who contributed their own physical labour or that of the members of their family in the cultivation of land belonging to another and who were so cultivating under a tenancy agreement, that is to say, not as trespassers or as owners, would be within the definition of the term "cultivating tenant". Ramaswamv Gounder v. Kalliappa Gounder. (1964) I Mad LJ 368 decided by Ramachandra Iyer. C. J., was directly under the Madras Cultivating Tenants Protection Act. That was a case of a lease of agricultural land for one year from property guardian of a minor under the directions of Court. The learned Chief Justice was of opinion that the lessee was not entitled to protection under the Act. He distinguished Mad LJ 34 = (ILR (1956) Mad 830) on the ground that the Bench decision related to the Tanjore Pannaival Protection Act which had 3 different scheme from that of the Madras Cultivating Tenants Protection Act. He pointed out that a lessee from a Receiver who was authorised to lease the property for a limited period during the pendency of certain proceedings or from a guardian during the period of his guardianship subject to the directions of the Court, could not obtain the benefits of the Cultivating Tenants Protection Act, unless the Court by appropriate directions conferred by its order such benefit at the time of granting the lease. It was further held that the lessee would have no right to continue in possession of the land beyond the period of the lease.

3. If literal application of the Tamil Nadu Cultivating Tenants Protection Act is made, it may prima facie appear that a tenant let into possession by a Receiver would be entitled to statutory protection under the Act. A cultivating tenant in relation to any land has been defined to mean a person who carries on personal cultivation on such land under a tenancy agreement, express, or implied. A "landlord" in relation to a holding or part thereof is defined to mean a person entitled to evict the cultivating tenant from such holding or part. A tenant let into possession by a Receiver appointed by Court literally appears to satisfy the definition of "cultivating tenant" and the Receiver, the definition of "Landlord" because the former carried on personal cultivation under a tenancy agreement with the Receiver and the latter being entitled to evict the cultivating tenant on grounds open to him he would be a landlord within the meaning of the Act. After termination of the tenancy agreement, express or implied, the inclusive part of the definition of "cultivating tenant" would take in as a tenant any person who continues to be in possession of the land after determination of the tenancy agreement. After discharge of the Receiver in 1961, the tenant having held over and continued to cultivate the land, he would appear to fall also within the inclusive part of the definition. It is, therefore, possible, on the basis of the literal application of the provisions of the Act to the facts, to hold that the tenant of the Receiver is a cultivating tenant within the meaning of the inclusive definition of the term and entitled to statutory protection.

4. But on a deeper consideration of the matter, we are of opinion that such literal extension of the provisions of the Act to the case of a tenant let into possession by a Receiver would not only be opposed to public policy but also be unjust SO far as the litigants in the litigation are concerned. Take for instance the case of a plaintiff who claims to recover possession on the basis of title vested in him and the suit being resisted by a denial of the claim and the defendant also being in Possession who, pending the litigation having been appointed as Receiver, lets out to a tenant who after the plaintiff gets a decree, claims protection under the Act. It will, at once, be obyious chat by the act of the Receiver letting the tenant into possession it has been placed beyond the reach of the Court to give the plaintiff the remedy he sought for which the Court held he would be entitled to in our opinion, the intention of the Act is not to cover such a case. The preamble to the Act says that it is one for the protection from eviction of cultivating tenants in certain areas in the State of Madras, because it is necessary to protect such tenants in those areas from unjust eviction. The legal position of a Receiver is not open to doubt. Under Order XL. Rule 1 of the Code of Civil Procedure the Court has power, when it appears to the Court to be just and convenient, to appoint a Receiver of any property whether before or after decree. Under that order, the Court has power to remove any person from the possession of custody of the property and commit the same to the possession, custody, or management of the Receiver. The Court may confer upon the Receiver all such powers, as to bringing and defending suits, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits and the execution of the documents as the owner himself has, or such of those powers as the Court thinks fit. The duties of a Receiver are also listed in Rule 3 of the Order. It seems to be clear from this order that, when the Court appoints a Receiver to take possession of immovable property involved in a suit, the effect is that the Court takes the property into its own custody and the Receiver is inducted by the Court by the appointment to act as agent of the Court. In order to enable the Receiver to manage the property, incidentally powers are conferred upon him. We are unable to consider the Receiver as owner of the property, only by reason of his appointment as Receiver to take possession and manage the property. He may have powers of management as in the case of an owner of property. But it is not the same as ownership. On account of his possession as Receiver he cannot claim that be is the owner. He acts on orders of Court and his acts are subject to the directions of Court. In the instance we gave, if the tenant of the Receiver is held to be entitled to statutory protection from eviction, it would in effect defeat the ends of justice and incapacitate the Court from giving relief to the one who is entitled to it according to the decree of the Court. The acts of a Receiver are, therefore, not intended to bring about such a result.

5. The position of a Receiver has received judicial notice in several cases. For the appellant our attention was drawn to Secy. of State for India v. Janardhana Rao, 30 Mad LJ 456 = (AIR 1917 Mad 746 (2)). But we do not think it savs anything contrary to what we have outlined above as to the position of a Receiver. In that case, it was said that the powers of a Receiver appointed by the Court depended upon the terms of his appointment subject to any modification the Court might from time to time make, but that where general powers of management were conferred, though subject to the control of the Court the Receiver as the person "in lawful management otherwise than as an agent, servant, mortgagee or lessee" was the proprietor and could validly exercise the power of nominating village officers vested in the "proprietor" under the Act. This is an instance where the position of a Receiver has to be modulated according to the requirements or exigencies of a particular case in order that the propertv in question may be effectively managed pending the litigation. It is in that sense that a Receiver could be regarded as a proprietor for purposes of the power in him to appoint a village officer. In Kanhaivalal v. Dr. D. R. Banaji. the Supreme Court observed:

"A receiver appointed under Order 40 of the Code of Civil Procedure, unlike a receiver appointed under the insolvency Act. does not own the property or hold any interest therein by virtue of a title. He is only the agent of the Court for the safe custody and management of the property during the time that the Court exercises jurisdiction over the litigation in respect of the property."

Kerr on Receivers. 12th Edition, at p. 154, says:--

"The receiver does not collect the rents, and profits by virtue of any estate vested in him, but by virtue of his position as an officer of the Court appointed to collect property upon the title of the parties to the action. In appointing a receiver the Court deals with the possession only until the right is determined, if the right be in dispute."

The position is more or less the same in England too. In Halsbury's Laws of England, Third Edition, Volume 32, page 607 we have the observation that a Receiver is a person appointed for the collection or protection of property. Where that is the position, that is to say, when he is appointed for the collection or protection of property, it will be travesty of justice if by his act of letting out he brings about a situation where his act ceases to be one of protection but of destruction of the rights of the successful party as declared by the Court. Again, as observed in Hals-bury's Laws of England at page 384, a Receiver appointed by the Court is in no sense an agent or trustee for the party at whose instance the appointment is made. He is an officer of the Court appointed for the benefit of all the parties to the action. By the order for the a appointment of a Receiver the Court assumes control of the property affected, and from that time, the parties to the action retain possession only as custodians for the Court. In fact, as noticed by Halsbury, any interference with the possession of a Receiver appointed by the Court is a contempt of Court and renders the offending party liable to committal. Sir John Woodroffe "on Receivers" is worth quoting:--

"The Receiver being the officer of the Court from which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis for the benefit of whoever may be ultimately determined to be entitled thereto."

According to Sir John Woodroffe when the Court orders a receiver to enter into a contract the contract is made with the Court, the approval by the Judge of the offer made by the third party constituting the contract. Such power of enforcing subsisting contracts made by it is not affected by the fact that the Court has ceased to manage the estate before such contract is carried out by reason of the dismissal of the suit.

6. So then the act of the Receiver in letting out the land in the suit is an act of the. Court itself and it is done on behalf of the Court, the whole purpose of the Court taking possession through the Receiver appointed by it is to protect the property for the benefit of the ultimate successful party. If that is the essence and purpose of appointment of a Receiver, as we hold it is, it will be difficult to agree that by a literal application of the Tamil Nadu Cultivating Tenants Protection Act, it could be put beyond the reach of the Court to give relief to the successful party entitled to possession. Not only actus curiae nominem gravabit (an act of the Court shall prejudice no man) but also the doctrine of the property being in custodia legis coupled with public policy in rendition of Proper justice and conservance of power therefor would be valid and effective reasons for out view that the intention of the Act is not to extend the protection to the tenant of the Receiver and thus defeat justice eventually. Actus legis nomini est damnosus, that is to say art act in law shall prejudice no man, is another aspect of public policy. Our view derives also strength from the fact that an act of the Receiver done on behalf of the Court is done pendente the and anyone who gets possession through such act can only do so subject to the directions and orders of Court. That is implied from the nature and legal position relating to the appointment and powers as well as the management by the Receiver.

7. Though there are other cases which have been referred to at the Bar. we find that in none of them the approach that we have made found a place. In Chandrasekharan v. Kuniuvanniar. L. P. A. No. 10 of 1972 = (AIR 1975 Mad 2271 we have held that a tenant of a usufructuary mortgage with whom the tenancy aaree-ment came to an end would be entitled to statutory protection under the Act if he continues to be in possession and cultivates the land. Obviously, that would not be a case of a Receiver letting out and no principle of custodia legis or an act of the Court prejudicing a party or public policy was involved in it.

8. In our opinion, the appellant-tenant is not entitled, for the reasons we have given, to take cover under the Tamil Nadu Cultivating Tenants Protection Act and seek statutory protection. The Letters Patent Appeal is dismissed. So too, the second appeal and the civil revision petition are dismissed. No costs in any of them.

9. C. M. P. Nos. 10520 and 10522 of 1972 and C. M. P. 13684 of 1966 dismissed. C. M. Ps. 10519 and 10521 of 1972 ordered.


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