Pandrang Row, J.
1. This is an appeal from the decree of the City Civil Judge, Madras, dated 28th October 1931. This was the final decree but the appeal is in substance directed against an earlier order dated 29th September 1931 which refused the appellant's prayer to be allowed to purchase the land under Section 9, Madras City Tenants' Protection Act. The suit was filed by the owner for ejectment and for arrears of rent and mesne profits. The original tenant died, and defendants 1 to 3 are his heirs. Before his death, the original tenant executed a usufructuary mortgage in favour of defendant 4, who is the appellant in this appeal. Defendant 1 was absent, and the Court guardian for the minor defendants 2 and 3, though claiming in the written statement that they were entitled to purchase the lands at a valuation to be fixed by the Court does not seem to have actually put in an application for this purpose. On the other hand, it would appear that the lower Court asked the guardian whether defendants 1 to 3 could find the money necessary for purchasing the land, and the guardian was unable to give any reply.
2. I do not think this kind of inquisition is contemplated by Section 9, Madras City Tenants' Protection Act. Whether they can find the money or not is not the question, but whether they have applied to the Court under Section 9, and there is nothing to show that any actual application was made by any of defendants 1 to 3 under this section. Defendant 4 however applied, and his application was rejected by the lower Court, on the ground that he was not a tenant within the meaning of the Act. It is from this decision that defendant 4 appeals, and the only point for determination is whether the appellant is not a tenant within the meaning of the Madras City Tenants' Protection Act. It is not necessary to deal with this point at any length, because the appeal is not opposed by the plaintiff-respondent's advocate, who says that he has no objection to the appellant being permitted to purchase the land under Section 9 of the Act, and he goes further and even says that he never objected at any time, not even in the Court below, to the appellant's prayer being granted. This however is not conceded by the appellant's advocate before me. It seems to be rather improbable either that the lower Court would have rejected the application or that defendant 4 would have taken the trouble to file the appeal, if as a matter of fact, the plaintiff was all the time quite willing to allow defendant 4 to purchase the land under Section 9 of the Act. The word 'tenant' is defined in the Act itself in Section 2 and it includes every person deriving title from a tenant of land liable to pay rent on it. There can be no doubt that the father of defendants 1 to 3 was the original tenant within the meaning of the Act. Defendant 4 holds a usufructuary mortgage from him. The question therefore is whether a usufructuary mortgagee is not a person deriving title from the mortgagor. To put the question is to answer it. If he does not derive title from the mortgagor, I fail to see from whom he can derive it.
3. There is no basis for the contention that, unless the entire title or interest of the tenant is transferred, the transferee cannot be regarded as a tenant. I am of opinion that the view of the lower Court on this point is wrong, and that defendant 4 should have been allowed to purchase the land under the conditions prescribed in Section 9 of the Act. The appeal is therefore allowed and the decree of the lower Court is set aside. The suit will be remanded to the Court below for fresh disposal after dealing with defendant's 4 application under Section 9 of the Act according to law. In the circumstances of the case, I direct that the costs of this appeal be borne by the parties themselves. As regards the costs in the Court below, they must be provided for in the revised decree to be passed by the lower Court.