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R. Subbaiah thevar Vs. R.V. Muthurangaswamy Naicker and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1975)1MLJ306
AppellantR. Subbaiah thevar
RespondentR.V. Muthurangaswamy Naicker and ors.
Cases ReferredKataperumal Padayachi v. Kuthiah Odayar
Excerpt:
- .....heir.the learned counsel for the petitioner contends that sub-tenant is specifically included as a person entitled to the protection under this act and that therefore he is entitled to the protection.6. before interpreting the definition of the word cultivating tenant it is necessary to point out the rights and liabilities of a landlord and sub-tenant, under the general law of the transfer of property act. in the absence of a contract or a local usage to the contrary, the rights of the landlord and the tenant under a tenancy agreement are both transferable and heritable. therefore if a tenant, before a tenancy agreement is determined, dies or assigns his rights to a third party, the legal representatives or the assignee respectively are entitled to claim the rights under the tenancy.....
Judgment:
ORDER

V. Ramaswami, J.

1. These two petitions have been filed by the sub-tenant claiming the statutory rights under the Tamil Nadu Cultivating Tenant's Protection Act, 1955 (hereinafter called the Act). The first and second respondents, who are the landlords filed a petition in O.P. No. 651 of 1970 on the file of the Authorised Officer, Land Reforms, Pollachi, under Section 3 (4) (a), read with Section 3 (2) (6) and (c) of the Act, praying for eviction from the holding.

2. Under a tenancy agreement dated 18th October, 1967 the landlords leased an extent of 12 acres and 56 cents in G.S. No. 536 of Pollachi Village, and an extent of 2 acres and 61 cents in G.S. No. 185 and 188 of Suleswarampatti Village, to the respondents 3 and 4, for a period of one year, on an anuual rent of Rs. 5,000 in cash, one baram of coconuts, 2,000 coconut leaves and 3,000 pealed cocount skins. The tenants paid a portion of the rent for 1967-68 and a sum of Rs. 500 was due and payable. The tenants also failed to pay the rents due for the years 1968-69 and 1969-70. The value of one baram of coconut and the 2,000 coconut leaves is mentioned as Rs. 500 and the value of pealed coconut skins as Rs. 150. On such valuation, the landlords contended that a sum of Rs. 11,800 was in arrears from the tenants. Since by the time the application for eviction was filed the tenants had sub-leased the properties to the petitioner herein, he had also been impleaded as a party to this petition for eviction. While this petition was pending, the landlords also filed O. S. No. 753 of 1970 on the file of the Sub-Court, Coimbatore, for the recovery of the sum of Rs. 11,800 due towards arrears of rent. In this suit also, the tenants, and the sub-tenant were impleaded as party defendants. Pending this suit the sub-tenant filed O.S. No. 143 of 1971 in the same Court, for an injunction against the landlords restraining them from interfering with his possession and enjoyment except according to law. The suit O. S. No. 753 of 1970 was ultimately decreed, but a finding was given that the petitioner herein was a sub-tenant. On this finding, the Subordinate Judge also granted the injunction prayed for by the subtenant in O. S. No. 143 of 1971. After the disposal of these suits, the subtenant filed O. P. No. 206 of 1973 and deposited a sum of Rs. 5,000 on 7th February, 1973 as rent due for fasli 1381, and contended that since he had deposited the rent for fasli 1381 no further arrears of rent for the earlier period was payable, and that the eviction petition filed by the landlord is liable to be dismissed.

3. These two petitions, one filed for eviction by the landlords and the other filed by the sub-tenant under Act XXI of 1972, were heard together. The Authorised Officer held that the deposit made by the sub-tenant did not include the value of the baram of coconuts, coconut leaves and the coconut skins, and that therefore it was not the full rent payable for fasli 1381. The Authorised Officer also held that the sub-tenant is not entitled to the protection of the Act and therefore the petition for recording the deposit under Act XXI of 1972 is liable to be dismissed and the petition for eviction filed by the landlord is liable to be ordered. Accordingly the eviction order was made against the tenants and the subtenant. The sub-tenant has filed these two revision petitions, one against the order of eviction under the Act and the other against the order made in O. P. No. 206 of 1973.

4. C. R. P. No. 1187 of 1974, which has been filed against the order in O. P. No. 206 of 1973 can be easily disposed of at this stage. As already seen, the rent agreed to by the tenants under the tenancy agreement executed on 18th October, 1967 was not only a sum of Rs. 5,000 but also one baram of coconut, 2,000 coconut leaves and 3,000 coconut skins. The deposit made by the subtenant was only a sum of Rs. 5,000 and did not include the value of the baram of cocount, coconut leaves and-coconut skins. Since the petitioner subtenant had not complied with the provisions of Act XXI of 1972, by depositing the entire amount due for the falsi 1381, even assuming that he was entitled to the statutory protection, the petition O. P. No. 206 of 1973 was rightly dismissed. It might be that even after the deposit of Rs. 5,000 on 7th February, 1973 the sub-tenant could have deposited a further sum of Rs. 650, the value of the baram of coconut, coconut leaves and coconut skins on or before 10th February, 1973, which was the last date prescribed under that Act by way of additional deposit but that has not been done. It is therefore not open to the petitioner to ask for a further time of 3 days at the time of hearing that application on any basis of mistake. The provisions of Act XXI of 1972 do not enable either the Authorised Officer or the Court to grant any further time for depositing the arrears of rent and therefore the petition was rightly dismissed. On this ground alone, C.R.P. No. 1187 of 1974 is liable to be dismissed.

5. But the substantial question that arises for consideration in C. R. P. No. 1186 of 1974 is whether the sub-tenant in this case is entitled to the protection of the Act . The definition of the words Cultivating Tenant as amended by Madras Act IX of 1969 reads as follows:

(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) includes:

(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.

The learned Counsel for the petitioner contends that sub-tenant is specifically included as a person entitled to the protection under this Act and that therefore he is entitled to the protection.

6. Before interpreting the definition of the word cultivating tenant it is necessary to point out the rights and liabilities of a landlord and sub-tenant, under the general law of the Transfer of Property Act. In the absence of a contract or a local usage to the contrary, the rights of the landlord and the tenant under a tenancy agreement are both transferable and heritable. Therefore if a tenant, before a tenancy agreement is determined, dies or assigns his rights to a third party, the legal representatives or the assignee respectively are entitled to claim the rights under the tenancy agreement as if the tenancy agreement were entered into with them. Thus, the law created privity of estate in such cases between the original landlord and the legal representative or the assignee of the tenant. Keeping this position in view, let us now consider what is the protection given under the Act.

7. It is seen from the definition, that in order that a tenant may claim protection under the Act he must satisfy two conditions. Firstly, there shall be a tenancy agreement, express or implied between him and the landlord, and secondly he shall contribute his own physical labour or that of any member of his family in the Cultivation of such land. On the termination of the tenancy agreement, the tenant cannot satisfy the first condition relating to the tenancy agreement between him and the landlord. But Clause (a) of that definition specifically included such a person also for the benefit of the protection. But for the inclusion of such person, who continued in possession after the termination of the tenancy also as being entitled to the protection he would not be entitled to the protection because the first condition relating to the existence of the tenancy agreement, express or implied would not be satisfied. It would not be correct to say that during the currency of tenancy there is no need for the statutory protection for they would be governed by the terms of the tenancy. The statute confers many rights against eviction and in respect of payment of rent which are not covered by the terms of tenancy.

8. By Clause (b), the Legislature has given protection to the heirs of 'such person' who is entitled to the protection if the heir also contributes his own physical labour or that of any member of his family for the cultivation of the land. The learned Counsel for the petitioner contended that this clause contemplates a case where even though the tenancy agreement had been determined the original tenant continued as a statutory tenant, before the succession. I am unable to agree with this contention of the learned Counsel for the petitioner. As already stated as per main part of the section the two conditions will have to be satisfied. The words 'the heirs of such person' are very important, 'such person' there only refers to a person who could satisfy the two conditions prescribed in the first part of the definition and not a person included under Section 2 (aa) (ii) (a) of the definition. Clause (a) gave an exemption to a tenant, who continued to be in possession after the termination of a tenancy agreement with him from satisfying the first condition relating to the existence of the tenancy agreement. Clause (b) in my opinion, contemplates a case where the heir of the original tenant, could claim to be a tenant under the tenancy agreement with the landlord on having succeeded to the rights before, the determination of the tenancy and having thus become legally entitled to enforce the tenancy, agreement, later on continues in possession even after the determination of such a tenancy agreement. Thus, unless the original tenant dies before the determination of the tenancy, the legal heir could not claim any benefit of the statutory protection, though he may satisfy the other condition relating to the contribution of his own physical labour. It would not apply to a case of an heir of a person who could claim protection only under Section 2 (aa) (if) (a). In fact the statutory tenant under Section 2 (aa) (ii) (a) has no right to assign his statutory right to any subtenant and the right also is not inheritable as it is a personal right conferred by the statute, and therefore, the sub-tenant or the heir could not claim to be in possession of the land under any tenancy agreement after the original tenant had become statutory tenant coming under that clause.

9. I have considered the scope of Clauses (a) and (b) in order to understand more precisely the scope and extent of the provisions in Clauses (c) and (d) Having regard to the definition in the main part and the inclusive part of Clauses (a) and (4) provided therein, I am of opinion that Clauses (c) and (d) also apply to a case where a sub-tenant becomes entitled to enforce a tenancy agreement with the landlord by reason of assignment in his favour before the tenancy was terminated and not to a case where he becomes a sub-tenant after the original tenant had become a statutory tenant. The word ' subtenant ' itself implies that he is a person to whom the original tenant had assigned his entire rights under the tenancy in respect of the land. After the determination of the tenancy the tenant has no legal right in the tenancy apart from the statutory right which cannot be assigned, and therefore, he could not assign any right in the land. A sub-tenant as in the case of an heir under Clause (6) must have succeeded to the tenancy right in order to claim the statutory protection under the Act. Clause (d) in my opinion makes that position clear. In considering the case of a sub-tenant Clauses (c) and (d) will have to be read together. The later portion of Clause (d) shows that what is contemplated in Clauses (c) and (d) is person in possession with privity of estate and such persons continuing in possession even after the person who sub-let ceasing to have the right to possession. Such a person would have no right to remain in possession under the general law though privity of estate is created between the landlord-lessor and the sub-tenant as the original tenant could have assigned only the unexpired portion of the term. Further Section 108 (J) of the Transfer of Property Act expressly provided that the lessee by transferring the whole or part of his interest does not absolve himself from his contractual liabilities to the lessor. Even the notice to the lessor on transfer, it has been held in a number of cases, does not affect this liability. The original lessee is liable on his covenant and his assignee on privity of estate. The original tenant may thus cease to have a right to possession by determination of the tenancy or otherwise. Clause (d) protects the sub-tenant even in such cases.

10. The learned Counsel for the petitioner brought to my notice a decision of this Court in Kataperumal Padayachi v. Kuthiah Odayar : (1963)1MLJ359 . In that case the question for consideration was whether a sub-tenant can claim the rights of protection under the Act as against the original tenant. It was held that if a tenancy agreement between the original tenant and the landlord had not been terminated then the sub-tenant would be entitled to the protection under the Act as against the original tenant who is his lessor. At the time when this decision was given Sub-clauses (c) and (d) were not there in the definition of cultivating tenant. These clauses were included by the Amending Act IX of 1969. Under the amended provisions the subtenant who was found not entitled to protection after the determination of the tenancy would also be entitled to the protection. This is precisely what the Sub-clauses (c) and (d) of the definition of the cultivating tenants provide for.

11. The learned Counsel for the petitioner could not rely on any decision where it was held that even in a case where the assignment was after the determination of the sub-tenant, tenancy was entitled to protection under the Act either prior to the amendment of the definition by Act IX of 1969 or subsequent to the amendment. In my opinion the amendment of the definition by Act IX of 1969 did not; change in any way the general law relating to the rights of the subtenant under a tenancy agreement. The general law that only an assignment during the subsistence of the tenancy agreement will confer the right on the assignee to enforce the terms of the tenancy, has not been changed, by the amendment. There-fore the sub-tenant would not be in a position to satisfy the first condition relating to the tenancy agreement express or implied, in a case where the assignment was subsequent to the determination of the tenancy or subsequent to the time when the original tenant became a statutory tenant. I am unable to find anything in the language in Clauses (c) and (d) conferring on a subtenant such a right or such a statutory protection even in a case where the assignment of the lease in his favour was after the determination of the original tenancy agreement between the landlord and his tenant,

12. In the instant case the evidence is not clear as to when the sub-tenancy in favour of the petitioner herein was given but it could be fairly inferred from the facts that he could not have become a sub-tenant during the year 1967-68. The allegation in the petition for eviction was that the original tenant paid the rent for 1967-68 and there was only a balance of Rs-500 in respect of that year and that the entire rent payable for 1968-69 and 1969-70 was in arrears. In the counter-affidavit filed by the respondents 1 and 2 they had stated that they had sub-leased the property to the 3rd respondent the petitioner herein and that they expected the sublessee to pay the rent to the landlord regularly. In the counter statement filed by the 3rd respondent the petitioner herein, it was stated that the respondents 1 and 2 had not stated when actually the sub-lease in his favour was given. In the evidence of R.W.1 he had stated that in the Tamil month Puratasi he got the lease from the original lessees. Puratasi ends with 15th October and this evidence at best could be that in October, 1968 the lease in his favour was given by the tenants. But unless it is shown that the assignment was before 18th October, 1967, that is, before the expiry of the one year for which the original lease was given, the petitioner could not claim to have got into possession of the land under a tenancy agreement express or implied.

13. Under these circumstances , therefore, I am of the opinion that the petitioner herein is not entitled to the protection of the Cultivating Tenants Protection Act. These petitions accordingly fail and are dismissed. There will be no order as to costs.


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