S. Ramachandra Iyer, C.J.
1. This Civil Revision Petition which arises out of proceedings instituted by the petitioner for restoration of possession under Section 4(5) of the Madras Cultivating Tenants Protection Act, 1955 (hereinafter referred to as the Act) comes up before this Bench in view of the inconsistency between the judgment of Veeraswami, J. in C.R.P. No. 322 of 1960 and certain observations contained in Ganapati Iyer v. Ayyakannu (1961) 1 M.L.J. 217.
2. The facts which have given rise to the application are not in dispute. The Dharmapura Adheenam in its capacity as trustee of Sri Sattanathaswami Devasthanam had leased out about 86 acres of land in Annavasal in Tanjore District to the respondent. Except in regard to specified extent of land, there was no prohibition against the respondent sub-leasing the properties to actual cultivators. In October, 1951, the respondent, had sublet an extent of 5.66 acres of land to the petitioner at a specified rent. The lease obtained by the respondent from the Adheenam expired in June, 1953. In that month the trustee put up in auction the leasehold right in the lands for the next five years ending with 30th June, 1958. The conditions of the auction made it clear that the lease was subject to such rights as the cultivating tenants In the land might have by virtue of the Tanjore Tenants and Pannaiyal (Protection) Act, 1952. The respondent became the successful bidder at the auction. He executed a formal agreement in favour the trustee embodying a number of conditions and undertaking to vacate the land at the end of the term. The petitioner who was let into possession in 1951 under the sub-lease referred to above, continued in possession of the property. He paid the rents regularly till fasli 1366. Sometime earlier, that is, on 26th April, 1956, the trustee, namely, the head lessor, issued a notice Exhibit P-4 to him (the sub-tenant) terminating the tenancy as and from 30th April, 1957. the notice which is in a printed form acknowledged that the petitioner had obtained rights under the Tanjore Tenants and Pannaiyal (Protection) Act and it intimated that on the expiry of that enactment his rights would cease. Although under the ordinary law there is no privity of contract between a sub-tenant and the head lessor, the latter in the instant case had to recognise the rights of the former as under the provisions of the Tanjore Tenants and Pannaiyal (Protection) Act, a sub-tenant wouldhavea statutory right to continue in possession even as against the head lessor. This was the view taken by this Court, in Sereng Abdul Khadir v. Rajagopala Pandaraya (1959) 1 M.L.J. 34. The circumstance that the head lessor in the instant case issued a nptice to the sub-tenant in the manner stated above cannot however by itself create any contractual relationship between the two. The Tanjore Tenants and Pannaiyal (Protection) Act has now been replaced by the Madras Cultivating Tenants Protection Act, 1955, except in regard pannaiyals. The petitioner fell into arrears of rent with respect to faslis 1366 and 1367. Thereupon the respondent filed an application before the Revenue Court, Kumbakonam, in Petition No. 1186 of 1958 praying for eviction of the petitioner. The Court dismissed his application by its order dated 13th February, 1959, on the ground that it had no jurisdiction to entertain the application against the petitioner who was a sub-tenant and as such could not be said to be a cultivating tenant. The conclusion in that case was based on a decision of this Court in Ramaswami Naidu v. Maradaveera Moopan (1959) 1 M.L.J. 25 where it was held that a sub-tenant deriving title through the tenant of a landlord could not be regarded as a cultivating tenant of the landlord. It will be seen that that decision would not apply to a case where the main or chief tenant seeks to evict his own tenant, namely the sub-tenant. There was therefore an obvious confusion on the part of the Revenue Court when it declined to exercise its jurisdiction; for while a sub-tenant who has a privity of contract only with his immediate lessor, namely, the chief tenant and has no privity either of contract or estate with the landlord cannot be a cultivating tenant vis-a-vis the landlord, it might be possible that he could be regarded as a cultivating tenant within the meaning of Section 2 (a) of the Act of the chief tenant, his immediate lessor.
3. On the dismissal of the application for eviction, the petitioner continued in possession of the land. Alleging that he was forcibly dispossessed by the respondent sometime during the first week of July, 1959, he filed the application out of which the present proceedings arise for restoration of possession. This he would be entitled to under Section 4(5) of the Act which confers the right on a cultivating tenant who had been evicted otherwise than by adopting the procedure prescribed by the Act to apply within two months from the date of such eviction for restoration to him of the possession of the lands which he, prior to the eviction, was in occupation. The Revenue Court rejected his application on the ground that the subtenant would not be a cultivating tenant who would be entitled to take advantage of the provisions of Section 4(5). It further held that the head lessor not having been made a party to the petition, no relief could be granted to the petitioner on Ms application-. The correctness of that order has been challenged by the petitioner in this Revision Petition.
4. Under Section 2(a) of the Act the term' cultivating tenant' has been defined thus:
'Cultivating tenant' in relation to any land means a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied....
It is not disputed that the petitioner in the present case carries on personal cultivation of the land and that he does so under a tenancy agreement entered into with the respondent. The respondent at the time he granted the lease to the petitioner was himself a lessee of the Adheenam. The lease in favour of the respondent by the Adheenam was undoubtedly a transfer of a right to enjoy such property on the terms and conditions set out in the agreement of lease. There is thus a transfer of property from the trustee to the respondent though the right and duration of enjoyment has been limited by the terms of the contract. As we stated earlier, there was no prohibition in the lease granted to the respondent by the head lessor against sub-letting in regard to certain items of property of which the area concerned in this petition forms part. When the respondent granted a sub-lease to the petitioner, the latter had a lawful right to enjoy the land under his lessor, namely, the respondent, although he could have no right as against the head lessor. Correspondingly, the respondent would be entitled to evict the petitioner on the termination of the sub-lease. The respondent would therefore be a landlord within the meaning of Section 2(e) of the Act which defines a landlord in relation to a holding as ' The person entitled to evict the cultivating tenant from such holding or part.'
It would follow from this that so far as the respondent is, concerned, the petitioner would be a cultivating tenant although the latter would not have any rights as against the head lessor. In Ganapati Iyer v. Ayyakannu (1961) 1 M.L.J. 217 Jagadisan and Kailasam, JJ., held that an under-lessee or a person deriving title through a cultivating tenant would not be a cultivating tenant within the meaning of Section 2(a) of the Madras Cultivating Tenants Protection Act. That was a case where the chief tenant was himself a. statutory tenant under that Act. His sub-tenant claimed rights under the Act even as against the head lessor. That claim was rejected by the learned Judges. We express our respectful concurrence with that view. But the learned Judges have proceeded to make certain observations even in regard to the status of the sub-tenant as against his own landlord, namely, the chief tenant. We are unable with respect to share the view.
5. In Rangayya v. Tatayya (1960) 2 An. W.R. 53 the Andhra Pradesh High Court had to consider a similar question. In that case certain holders of a service inam leased the land to one Tatayya. Tatayya in turn sub-leased a portion of the property taken by him on lease in favour of one Rangayya. The Inamdar filed an application for fixation of fair rent under the Andhra Tenancy Act and the question arose whether the sub-lessee who was made a party to the application was a cultivating tenant against whom such an application could He. Umamaheswaram, J. held that the inamdars Were not competent to maintain any application against Rangayya, the sub-lessee, as he was; not a cultivating tenant. The learned Judge observed:. ... ... am inclined to hold that Tatayya is a cultivating tenant under the archakas. in respect of 1 acre, 60 cents and that Rangayya is cultivating tenant under Tatayya in respect of 9 acres and 70 cents. It might be open to Tatayya to take proceedings under Section 6 of the Act as against Rangayya in respect of 9 acres, 60 cents in his actual possession.
6. The learned Judges who decided Ganapati Ayyar v. Ayyakannu (1961) 1 M.L.J. 217 have no doubt expressed their dissent from the foregoing observation of Umamaheswaram, J. which held that a sub-lessee could be a cultivating tenant qua his landlord, but as we shall show presently that view cannot be supported.
7. Sometime after the judgment of the Bench of this Court in above case was delivered , the question now before us came up for consideration before Veeraswami, J. in C.R.P. No. 322 of 1960. The learned Judge held that a sub-tenant would be a cultivating tenant vis-a-vis his own landlord, namely, the tenant (judgment is un-reported). The learned Judge's attention however does not appear to have been drawn to the observations contained in Ganapati Iyer v. Ayyakannu (1961) 1 M.L.J. 217. Having given our anxious consideration to the question, we are of the opinion that the view taken by Veeraswami, J., should be accepted subject to the observation we propose to make in regard t o the duration of his tenancy.
8. It is well settled that there is neither privity of estates, nor privity of contract between the head lessor and the sub-lessees and that therefore the sub-lessee will not be liable for rent nor on any covenants in respect of the lease granted by the head lessor to the chief tenant. But ordinarily speaking the chief tenant stands in the same-relationship to the sub-tenant as his own landlord stands towards him. For example, a sub-tenant will be estopped from denying the title of his landlord, namely, the chief tenant to grant the sub-tenancy, just in the same way as the chief tenant will be precluded from denying the title of the head lessor at the time of the grant of the lease. The head lessor's rights will not be affected by the sub-lease : sub-tenants right will therefore stand or fall with the right of the main tenant. For example if the main, lease comes to an end either by efflux of time or by forfeiture, then the sub-lessee will lose his right to possession as well. But the case will perhaps be different where the head lessee voluntarily surrenders in favour of his landlord in derogation of the rights granted by him to the sub-lessee. But so long as the main lease is subsisting; the sub-tenant will have all rights secured to him under his contract with his own. lessor as well as those rights which a statute might give him as against the lessor. For example, if a main tenant obtains a lease from the head lessor for a term of 10 years and he lets into possession of the land a cultivating tenant as sub-lessee for a period of one year, such sub-lessee would be a cultivating tenant within the meaning of the Act and be entitled to all the privileges, for the duration of his lessor's title. If such title terminates on the expiry of the term, the sub-lessee's right to remain in possession of the land notwithstanding the fact that it had been given to him under the statute, will have to automatically come to an end, as he cannot have a higher right than what his own lessor had.
9. Turning to the facts of the present case the lease in favour of the respondent which was subsisting at the time when the petitioner was let into possession in the year 1951 came to an end in 1953. The respondent was not himself a cultivating tenant and therefore was not entitled to the protection afforded by the Act. The result was that the petitioner's right to continue in possession of the land came to an end with the respondent's lease. But unfortunately for him the respondent secured a fresh lease for a period of 5 years till 30th June, 1958. He allowed the petitioner to continue in possession of his 5.66 acres of land as before, and received rents till fasli 1366. That would show that even subsequent to the second lease in his favour, the respondent treated the petitioner as his sub-tenant and the rights of the latter as a cultivating tenant will therefore enure till the expiration of his lessor's second lease, that is, till 30th June 1958. It is argued on behalf of the respondent that after 30th June, 1958 there was a fresh lease by the head lessor in his favour and as thereafter there was no payment of rent by the sub-tenant to him, the sub-lease should be held to have terminated by 30th June, 1958 and there being no fresh lease, the petitioner would have no right to remain in possession of the land, or claim rights to restoration of possession as if he were a cultivating tenant of the respondent. This claim is denied on behalf of the respondent by invoking the aid of Section 43 of the Transfer of Property Act. It is contended that as prior to 1958, the petitioner was a tenant (subtenant) of the respondent, he would continue to be so when once the respondent obtained a fresh lease in the year 1958. In other words, it is said that so long as the respondent's tenancy continued, the petitioner will be entitled as against him to the protection of the Act. Reliance is placed in support of the argument on the decision, in Critchley v. Clifford L.R.(1962) 1 Q.B. 131 where a tenant sub-let a farm cottage in favour of the defendant in the case. When the former sought eviction, the latter pleaded protection under the Rent Restriction Acts. It was conceded in that case that when the head lease came to an end, the tenant would not be protected against the superior landlord. But it was held that the sub-tenant who came within the protection given by the Rent Restriction Act would be protected so long as his own lessors tenancy continued, and that, as against him he would be entitled to the protection of the Rent Restriction Act. To put it differently, such statutory rights of protection as a sub-tenant can have against his own lessor will be determined and be limited by the duration of that lessor's right. For example, if the main tenant's tenancy is for a term, the sub-tenant entitled to protection under the Act will, notwithstanding the expiry of his contract,, be entitled to remain in possession for the duration of that term. But it can extend no further. Where the main tenant is himself protected by the statute, his subtenant can, as against him, obtain protection under the Act for the duration of the statutory right of the main tenant. In Cow v. Cassey (1949) LR1 K.B. 474 it was recognised that a subtenant might be protected against his immediate landlord but not against the head landlord when the head lease expires. But these rights will not prevail over the right of the head lessor or landlord. If, for instance, the landlord, after the expiry of the lease in favour of the main tenant, grants a lease in favour of a third party, the latter as assignee of the landlord will not be bound by any statutory rights of the sub-tenant,. as the latter can not, on the principle of the decision in Ganapati Iyer v. Ayyakkannu (1961) 1 M.L.J. 217 be deemed to be a cultivating tenant of the new lessees The question is whether it will make any difference if the landlord, on the termination of the first lease, grants a new lease of the same property in favour of the same main tenant. We are of opinion, that there will be no difference between the two cases. In the latter case also the main tenant will he claiming a fresh title under the landlord and will not be bound by the rights of the sub-tenant any more than what the head lessor would be. Section 43 of the Transfer of Property Act will apply to a case where the main tenant purports to grant a sub-lease extending beyond his own term. In such a case if he gets a fresh lease he would be bound to feed the grant by the principle of estoppel contained in the section. Essentially the provision under Section 43 enacts a rule of estoppel against a person who having no interest or having partial interest in a certain property grants a lease of a larger interest and subsequently acquires interest in that property. The lessee would then be entitled to the interest acquired by his transferor to the extent of the grant. For the application of that principle, there should be a grant or contract by the lessor. In the present case there was no contractual lease by the respondent to the petitioner extending beyond his own term under the lease granted to him by the head lessor, the rights claimed now by the petitioner are not under any grant or contract by the respondent but only under the statute. The principle of Section 43 of the Transfer of Property Act which applies only to the case of a grant cannot obviously apply to a claim under the statute. The petitioner will therefore be not entitled to claim that he is statutory tenant under the respondent even in respect of the subsequent lease obtained by him. But it might be open to the respondent to recognise the petitioner as his tenant. In such a case a fresh contra-actual tenancy will be created and the sub-lessee will thereafter become entitled to the protection afforded by the statute. That happened in the present case immediately after the lease in favour of the respondent expired in 1953. The petitioner paid rents for the next two faslis and the respondent who received the same must be held to have allowed him to continue as a tenant. The duration of that tenancy, augmented as it would be by the statute, will only subsist till the termination of the same on 30th June, 1958. There is no evidence in the present case that subsequent to that date the respondent recognised the petitioner as a tenant either by receiving rents or otherwise.
10. Before proceeding further on this point we shall dispose of two points raised by the petitioner. On behalf of the respondent reliance is placed upon the finding given in the previous Eviction Petition No. 1186 of 1958 to show that the petitioner was not a cultivating tenant. The decision in that case was, as we pointed out earlier, based on a misapprehension. It is not suggested that that decision will constitute res judicata on the question whether the petitioner was a cultivating tenant or not so far as the respondent is concerned. But it was argued that the petitioner, who must be taken to have obtained a dismissal of that petition on the ground that he was not a cultivating tenant cannot now turn round and say that he is a cultivating tenant. The argument is really based upon the rule that a party cannot both approbate and reprobate. The origin and the application of that rule has been recently discussed by a Full Bench of this Court in Kuppanna Gounder v. Peruma Gounder (1961) 1 M.L.J. 65. In order that the rule should apply we must first be satisfied that the petitioner obtained an advantage by taking a particular stand, namely, that he was not a cultivating tenant, in the previous proceedings. To obtain information on the point we allowed counsel on both sides an opportunity to refer to anything on record in the present case which would show that the petitioner took up the position that he was not a cultivating tenant in the previous proceedings. The learned Counsel conceded that there was no material on record to show that any such point was taken by the petitioner. It follows that the petitioner could not be precluded from urging in the present case that he is a cultivating tenant.
11. But as we have pointed out earlier, it is not clear from the records that subsequent to the renewal of the lease by the head lessor in favour of the respondent there was any act on the part of the latter admitting the petitioner as his tenant. If there was no such act, the petitioner, on the principles we have already stated, will not be a cultivating tenant of the respondent, as his rights must be held to have come to an end with the termination of his lessor's tenancy by 30th June, 1958. If however he had been acknowledged as a tenant subsequent to the grant of the fresh lease in favour of the respondent, he would be entitled to all the protection given to him under the Act. For a proper disposal of this question it is necessary that there should be a remand of the case to the Revenue Court at Kumbakonam. The Revenue Court is directed to restore the application for restoration of possession to its file and ascertain whether subsequent to the present lease in favour of the respondent, the petitioner has been admitted as a tenant by the former. If, so, there should be an order for restoration of possession in favour of the latter. If it is not so, the application for restoration of possession will have to be dismissed.
12. There will be no order as to costs in this Civil Revision Petition.