1. The question which has been referred for decision is this:
Does the expression 'defaulter' in the Madras Estates Land Act denote only the person who is the registered pattadar, or the heir of the registered pattadar, or the person whom the landholder has become bound to recognize as the ryot by reason of the provisions of Section 146, or does it also include a person who has been accepted by a landholder as his ryot and has defaulted in the payment of his rent.
2. The reference arises under the unamended Act and has been occasioned by the definition of the word 'defaulter' given by Sadasiva Ayyar J. in Midnapore Zamindari Co., Ltd. v. Muthuppudavan ('21) 8 A.I.R. 1921 Mad. 195. When the appeal out of which the reference arises was before the Bench responsible for making the reference it was contended that the definition was too limited in its scope and as it appeared that there was foundation for this argument it was decided to place the question before a Pull Bench for decision. Before proceeding to discuss the question it will be helpful in appreciating its full implication to set out the admitted facts. The respondent who was the plaintiff in the suit purchased three holdings from registered pattadars of the appellant, who owns a zamindari in the Madura District. The first purchase was made in 1900, the second in 1906 and the third in 1911. All the transfers were effected by registered conveyances. The appellant accepted the respondent as his ryot and the respondent year by year paid to him the agreed rent. The appellant issued pattas to the respondent, but these did not bear his name. In each case the name of the registered pattadar was inserted. There is no question that the registered pattadars had parted with their interests in these holdings and that the respondent had acquired their interests in full. The pattas issued to the respondent were intended to be his pattas and were accepted by him as such, but he did not tender muchilikas in exchange. In 1931 the respondent defaulted in the payment of his rent and the appellant served upon him a notice of his intention to sell the holdings under the provisions of Section 112, Madras Estates Land Act, 1908. The respondent did not contest the appellant's right to sell and in due course the Collector directed that the holdings should be sold for arrears of rent. The sale took place on 3lst October 1933 and at the court auction the appellant bought the kudiwaram rights in the holdings. Before the procedure contemplated by Section 112 can be adopted the relationship of landholder and ryot must exist. The respondent was undoubtedly a tenant of the appellant within the meaning of the Transfer of Property Act, but was he a ryot? Section 3(15) of the Act says that a ryot must be a person who holds for the purposes of agriculture ryotiland in an estate on condition of payment to the landholder the rent which is legally due upon it, but it is contended that before a transferee can become a ryot so as to be a defaulter within the meaning of Section 112 procedure of the nature contemplated by Section 145 must have been followed. Section 146(1) says:
Whenever a holding or any portion thereof is transferred by the act of a ryot, or in execution of a decree or order of a civil Court passed against him, or by a sale for arrears of Government revenue or for any demand recoverable as such arrears, such transfer shall, subject to the provisions of Section 145, be recognized by the landholder if notice in writing be communicated to him by the transferor and transferee or a certified copy of a decree or order of a civil Court establishing a transfer is produced, or in cases in which a transfer is effected by sale under the order of any Court or public officer, the sale certificate or a certified copy thereof is produced.
3. There is direct support for the respondent's contention to be found in Midnapore Zamindari Co., Ltd. v. Muthuppudavan ('21) 8 A.I.R. 1921 Mad. 195. It was there held by Sadasiva Ayyar J. in a judgment in which Spencer J. concurred, that the word 'defaulter' in the Madras Estates Land Act denotes only the man who is the registered pattadar, or his heir, or the person whom the landholder has become bound to recognize as the ryot under Section 146 of the Act. While no exception can be taken to the decision of that case on the merits it is manifest that this definition is too limited. There is nothing in Section 146 or elsewhere in the Act which says that a landholder shall not accept a transferee as his ryot, unless the section is complied with. The landholder is bound to accept a transferee who complies with the requirement of Section 146, but he may, if he chooses, accept him without being served with a notice in writing or a certified copy of a decree or order of a civil Court establishing the transfer or by the production of a sale certificate, whichever is appropriate.
4. Now in the present case there can be no doubt that the respondent was a ryot within the meaning of the Act. He was in possession, for the purposes of agriculture, of ryoti land in an estate on condition of paying to the landholder the stipulated rent, and from time to time pattas were issued to him. The fact that they were not issued in his name, but in the names of his transferors makes no difference, as was decided by this Court in Zamindar of Ettiya Puram v. Sankarappa Reddiar ('04) 27 Mad. 483 . In that case pattas had been issued to a transferee, not in his own name but in the name of his transferor. Kussell J., in dealing with the contention that these pattas were not valid said:
Assuming that pattas drawn up in precisely the same manner had been accepted for a series of years previous to Fasli 1308, in respect of this holding, then I consider that the plaintiff would in this suit be estopped from asserting that the patta is improper.
Under such circumstances, if there was a tender of the patta to the plaintiff though it ran in the name of defendant 1, it would not be open to the plaintiff now to object to it. This seems to me to be the principle of what was decided by the Court in Sree Sankarachari Swamiar v. Varada Pillai ('04) 27 Mad. 332 and also in Govinda Setti v. Sreenivasa Rao Sahib S.A. No. 1331 of 1904 unreported.
5. In this case fresh pattas were issued to the respondent and notwithstanding that they contained the names of the transferor he accepted them as pattas issued to himself and embodying the terms of his tenancy. Section 53 of the Act says that no landholder shall have power to proceed against a ryot for the recovery of rent by distraint and sale of his moveable property or by sale of his holding under Chap. 6 unless he shall have exchanged a patta and muchilika with such ryot or tendered him such a patta as he was bound to accept or unless a valid patta or muchilika continues in force. But when a patta is tendered and accepted it governs the rights of the parties, notwithstanding that the tenant has failed to exchange a muchilika. Section 52(3) provides for this. The respondent having accepted the first patta tendered to him became a ryot within the full meaning of the Act and as he defaulted in the payment of his rent he became a defaulter within the meaning of the Act which entitled the landholder to proceed against him under Section 112.
6. The position may be stated in this way. Before the Madras Estates Land Act can apply, the relationship of landholder and ryot must exist, but this relationship is not confined to the landholder and (a) the person who is the registered pattadar, or (b) the heir of the registered pattadar, or (c) the person whom the landholder has become bound to recognize as the ryot by reason of the provisions of Section 146. The landholder may recognize a transferee of a registered pattadar without any formality and if he does, the transferee becomes a ryot within the meaning of the Act, but before action can be taken under Section 112, Section 53 requires that the landholder shall have issued a patta to the transferee, not necessarily bearing his name, but a patta which is intended to be the transferee's patta. If the transferee accepts it, all the provisions of the Act apply to relationship between the two. We answer the reference in this sense. The costs of the reference will be made costs in the cause.