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Judgment
Miller, J.—I cannot accede to the contention that Section 54 permits the landlord to select a method of tender which is not one of those
prescribed by the section itself and to treat the provisions of Section 78(2) as merely affording him a way of proving that he has made a tender.
That might have been possible u/s 7 of the Act of 1865, which enacted what should be deemed sufficient proof of tender, but is not possible under
the present act which enacts how tender may be effected. The word '' may'' indicates that the landlord can choose between the methods provided
but not that he is at liberty to select some other method. It would require clearer language to warrant the construction, contended for by the
appellant.
Reading Sections 54 and 78(2) of the Act together, tender of patta may be made by delivery to the ryot. The CPC Order V 16 seems to draw
a distinction between tender and delivery but no doubt the legislature is entitled to prescribe delivery if it so pleases, as necessary to complete a
tender.
The question is, whether when a pattah is offered and refused it has been sufficiently tendered.
The pattah here was offered and refused and was then affixed to the ryot''s house : Section 78 (2) does not provide for affixing a patta to a
house but only to the land-when service by delivery cannot be effected. If then this offer and refusal is not a sufficient tender within the meaning of
the Act, the affixing of the patta to the house does not seem to be of any use to the landlord though it is not improbable that the omission from the
present Act of that method of tender was intended to be for his benefit.
So if the patta was validly tendered in this case, it can be only , on the ground that it was delivered to the ryot. It is not said that it was delivered
to any one on his behalf.
Now the landlord has not merely to deliver himself of the patta he has to deliver it to the ryot and giving the widest meaning I can to the word
deliver, I do not see that it is possible to hold that an offer of the patta to the ryot is delivery to him.
The CPC has, wisely, I venture to think, provided expressly for this case of tender and refusal of a summons (Order V Rule 17). In the Estates
Land Act, there is no express provision in Section 78(2) and I agree with the District Judge that it is necessary to hold that when once offer is
made and refused, the tender by delivery cannot be effected and it then becomes necessary to affix the patta to the land. If this is not done there is
no valid tender of the patta.
The appeals fail in my opinion and must be dismissed with costs.
S. A. 2280 of 1912.
Spencer J.
S.A. 2280 is a suit brought u/s 112 of the Madras Estates Land Act objecting to the attachment by a landlord of the lands of his tenant.
The plaintiff alleged interalia that no patta was tendered. An objection was taken at the trial that, because the patta was affixed to the house of
the plaintiff instead of the land as required by Section 54 and 78 Clause (2) of the Estates Laud Act, the tender was illegal. The Deputy Collector
found that, when the estate servants went to the pattadar''s house with patta, he was present in bis house and he refused to receive it and
consequently it was affixed to his house-He observed that, in his opinion there was no necessity for affixing the pattah to the land as that was ""a
course evidently meant to be adopted only in the case of absentee pattadars."" He found this issue in favor of the defendants and the plaintiff failing
in the other issue, the suit was dismissed with costs.
In appeal, the District Judge held that a tender or service u/s 78 (2) was "" not completed by mere physical offering of the patta or notice to the
tenant."" He held it to be essential that the tenant should either receive it, or if for any reason he did not receive it, that the requirements of the law as
to affixture should be complied with. He agreed with the Lower Court in finding that it had been proved that the patta was tendered to the tenant
and affixed to his house as he refused to receive it; bat as the patta has been affixed to the plaintiff''s house instead of being posted upon the land,
he reversed the Lower Court''s finding on this issue and cancelled the attachment. Both Courts agreed in finding the remaining issue-in favor of the
defendant.
Section 53 of the Madras Estates Land Act declares "" No landholder shall have power to proceed against a ryot for'' the recovery of rent by
distraint and sale of his moveable party or by sale of his holding under Chapter VI unless he shall have exchanged a patta and Muchilika with such
ryot or tendered him such a putta as he was bound to accept or unless a valid patta or muchilika continues in force"" Section 54 provides for the
tender of patta. It declares. "" The tender of a patta may be made to the ryot in the manner provided for the service of notice under Sub-section (2)
of Section 78, or if the Collector on the application of the landholder shall so permit, in respect of any estate or any portion of estate, by filing it in
the office of the Collector or such other officer as the Local Government may by general or....special order direct."" Section 78 which deals with the
service of written demand on defaulters at the time when destraints are made, provides in Sub-section 2 as follows. "" The demand and account
shall be dated and signed by the destrainer and shall within one year from the date on which the Arrears be came due be served upon the defaulter
by delivering a copy to him or to some adult male number of his family at his usual place of abode provided that it is in the neighbourhood of the
land to which the distress refers or to his authorized agent or when such services . cannot be effected, by affixing a copy of the notice on some
conspicuous part of the land to which it refers."" Section 112 which deals with the sale of ryot''s holdings provides that a notice of the intention to
sell may be served "" by delivering a copy to the defaulter or to his authorised agent, or to some adult male member of his family at his usual place
of abode, or, if such service cannot be effected, by affixing a copy thereof on some conspicuous, part of his last known residence, if he has any
within ten miles of the holding, or on some conspicuous part of the holding."" That these are ampler provisions than those u/s 78 may be seen by the
fact that Section 78 does not provide for affixing a ''copy of the notice to the defaulter''s residence as Section 112 does, and Section 112 defines
when the place of abode is in the neighbourhood by limiting neighbourhood to a distance within ten miles of the holding. We are here concerned in
considering, not whether the process for distraint and sale were properly effected, but whether there was a proper preliminary tender of patta. In
Sections 54 and 78 of the present Act the provisions of Sections 7 and 39 of Act VIII of 1865 have been to some extent repeated; for Section 7
declares a tender of patta "" shall be sufficiently evidenced by such proof of service as is provided for by Section 39 in the case of notice"" and
Section 39 provides for service of notice by "" delivering a copy to the defaulter or to some adult male member of his family at his usual place of
abode, or to his authorised agent, or when such service cannot be effected, by affixing a copy of the notice on some conspicuous part of his last
known residence or on some conspicuous part the land to which it refers."" The only apparent differences are the use of the word '' shall'' instead of
'' may'' in Section 7, the insertion of the words in Section 39 which allow a copy of the notice to be affixed to the defaulter''s residence and the
treatment in Section 7 of the prescribed formalities as evidentiary rather than directory. Under Regulation XXX of 1802 which was the law until
Act VIII of 1865 was passed, it was necessary for the landholder to offer the patta itself in the presence of witnesses before he could bring a suit
to compel its acceptance.
The principal questions for decision here are what meaning is to be attached to the word '' delivery '' in Section 78 and when it may be said to
be effected, and when it may be said that "" such service cannot be effected."" In Order 5 Rule 16 of the Civil Procedure Code, corresponding to
Section 79 of the Act of 1882 the words '' deliver'' and '' tender'' occur together. Order 5 Rule 17 throws a side light on what is meant in Section
Clause 2 of the, states Land Act by the words ""when such service cannot be effected."" It mentions the two contingencies (1) if the defendant
refuses to sign the acknowledgment (2) if he cannot be found. In both events it becomes necessary to affix a copy of the summons. Now the
Estates Land Act contains no provision for the serving officer obtaining the signature of a ryot who refuses the tender of patta; but if we take a
refusal to sign as meaning all that a refusal to accept ''tender'' means and something more, viewed in this light Section 78 seems to indicate that
something else remains to be done by the serving officer beyond merely offering the patta for acceptance.
Next as regards the word ''deliver,'' does it necessarily involve any reciprocal action on the part of another ? In the American Cyclopcedia of
Law and Procedure Vol. 13 p. 773 I find ""The word '' deliver'' has perhaps as many shades of meaning ascertained by judicial interpretation as
any other term known to the law."" In some connections it "" does not imply an act of the will on the part of some one else, nor an acceptance of
anything."" In Webster''s Dictionary the synonym of '' deliver'' was stated to be '' give forth, discharge, liberate, pronounce, utter '' and as an
example, one who '' delivers'' a package"" gives it forth.
Sections 54 and 78 read together show that a tender of patta may be made by '' delivering a copy to the defaulter. Although the serving officer
may be said to ""give forth"" a putta when he delivered it, the section requires that he should deliver it to the defaulter and this in my opinion denotes
a transfer of possession of the document. The action of delivering here cannot be completed by one present who delivers without involving a
reciprocal action of another who receives.
I therefore concur in thinking that this second appeal must be dismissed with costs. Though the strictly legal view which the District Judge has
taken of the provisions of the Act as they stand has resulted in this case in the landholder losing his remedy by attachment in spite of the finding of
two Courts that the ryot was well aware of the tender of putta, hard cases like this will become rare when the provisions of the Act become better
understood for parties will take care to comply with the exact wording of the sections even if the formality of affixing the puttas to the land may
entail a journey of some miles from the place of tender. The other appeals follow the result in this appeal.