Sundaram Ayyar and Others (Sons and Legal Representatives of the Defendant) vs Kulathu Ayyar

Spencer, J.—The question which we have to decide is whether landholder in Madras who has ceased to be a landholder can recover rent

for the years when he was a landholder by bringing the ryot''s holding to sale under the provisions of chapter VI of Madras Act I of 1908. For

Bengal it has been decided by the Privy Council with reference to the Bengal Tenancy Act that he cannot: vide Forbes v. Maharaj Bahadur Singh

ILR (1914) Calc. 926. The Madras Estates Land Act is modelled on the Bengal Tenancy Act. Therefore the above decision must have great

weight with us so far as it is based on provisions which have been repeated in the Madras Act. There are, however several distinctions between

the two Acts. In Bengal a landlord must bring a suit and obtain a decree before he can bring to sale the tenant''s holding. In Madras he can

proceed summarily to attach the holding by notice to the defaulter served through the Collector provided that he has exchanged a patta and

muchilika with the ryot or tendered him such a patta as he was bound to accept. Section 5 of Madras Act I of 1908 and Section 65 of the Bengal

Act VIII of 1885 both declare that the rent shall be a first charge upon the holding. Section 109 of the Madras Act provides for the case of a

conflict between the right of a landholder distraining produce and the right of a Civil Court decree-holder by declaring that the landholder''s right

shall prevail but this does not apply to the case of a landholder selling the ryot''s holding. As in Madras he does not occupy the position of a

decree-holder there can be no competition from other decree-holders for rateable distribution of the proceeds of the sale.

Section 148, Clause (h) of the Bengal Tenancy Act, which declares that notwithstanding anything contained in Section 232 of the CPC an

application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree unless the landlord''s

interest has become and is vested in him does not find place in the Madras Act. Thus one strong argument for the position that the right to sell the

holding for arrears is vested in the landholder qua landholder is wanting. The Privy Council decision dwells on the anomaly which would arise by

two persons, the landlord and the ex-landlord having simultaneously a first charge on the tenure and it goes so far as to class the ex-landlord as an

outsider.

This anomaly would present no real difficulties in Madras, u/s 111 a landholder cannot sell the holding for arrears until the revenue year in which

they became due is over and he has u/s 112 only one year in which he can take this step. Unless proceedings begun by one landholder were still

going on when the succeeding landholder wished to sell the holding for the rent of the following year, there would be no conflict of interests. Even

after the sale of the holding, the purchaser would be liable for the rent of the year in which he was in occupation. In case of a dispute between two

or more rival claimants to the title of landholder, Section 3(5) provides that the person who shall be deemed to be landholder for the purpose of

this Act is the person whom the Collector may recognize or nominate as landholder. Again, when there is an intention to distinguish between

landholders in possession and other landholders who have no subsisting interest, the Madras Act speaks distinctly of landholders in possession

(vide Section 200). This may be used as a not very convincing argument that where the word ""landholder"" occurs in the Act without qualification, it

includes persons out of possession.

I will now consider whether there are any other indications within the four corners of the Act that landholders have as in Bengal no right to

proceed against their ryot''s holding unless their interest as landholder subsists at the time.

It is provided in Section 53 that the remedy of landholders against the ryot''s movables and holdings under chapter IV of the Act is only

available to those landholders who have exchanged a patta and muchilika with their ryots or have tendered them such a patta as they were bound

to accept or there must be a valid patta or muchilika continuing in force. Can it be said that a valid patta or muchilika continues in force between a

ryot and a landholder who has ceased to have any subsisting interest in the estate? If the answer is ""no"" but he is a person who has exchanged or

tendered a patta under the first part of Section 53, we must then look to Section 52 and we find this section declaring that no ryot shall be bound

to accept a patta for a period of more than one revenue year and that pattas and muchilikas accepted or exchanged for any revenue year remain in

force only until the commencement of the revenue year for which fresh pattas are accepted or exchanged.

Under the old Act (VIII of 1865) it was recognized by the Privy Council in Ramaswami v. Bhaskarasami ILR (1879) Mad. 67 that there must

be a subsisting relation of landlord and tenant for the exchange of pattas and muchilikas.

The result therefore is that distraint and sale are remedies open only to landholders who have at the time of exercising this power a valid patta in

force between themselves and their ryots--I am aware that in his commentary on the Act Mr. V. Ramadas takes a different view but the illustration

which he gives to make the matter clear bags the whole question.

Again in Section 3(5) a landholder is defined as a person owning an estate or part thereof and it is doubtful if he can lay claim to be called such a

landholder merely because at some previous date he has owned an estate. If, as in this case, he is a lessee and comes within the description of a

person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner, there can be no reason for

imputing to the legislature an intention to create in favour of such parsons rights of greater extent and duration than those which are declared to

belong to owners who are landholders in their own right.

I am therefore of opinion that the lower Courts were right in their conclusions that as the defendant was not the lessee for fasli 1322 he could not

attach the plaintiff''s lands for the arrears of fasli 1321. In such cases the only remedy left to the ex-landholder is the right of suing upon his contract

for rent.

This Second Appeal is dismissed with costs. The Memorandum of Objections is also dismissed with costs.

Seshagiri Ayyar, J.

Vagaikulam is an inam village belonging to the Vyasaraya mutt. The defendant had a lease of it from the mutt for ten years up to the end of fasli

1321. His son became the leasee in fasli 1322. The plaintiff who is a ryot of the village is alleged to have made default in the payment of rent for

fasli 1321. In or about September 1912, the defendant attached the plaintiff''s holding for the arrears. This suit is to raise the said attachment. The

only question for decision is whether the defendant who had ceased to be the lessee from July 1912 can attach the plaintiff''s holding for the rent

due to him while he was the lessee. There is no guestion that the defendant was a landholder up to the end of fasli 1321: see Perraju Garu v.

Subbarayadu ILR (1913) Mad. 126. It is also undisputed that the lessee who succeeded the defendant was a landholder at the time when the

attachment was made. After hearing the mattar argued very fully on both sides and having regard to the grounds of the decision in Forbes v.

Maharaj Bahadur Singh ILR (1914) Calc. 926, I have though not without hesitation come to the conclusion that the defendant had no right to

enforce the attachment of the plaintiff''s holding in September 1912. The reasoning of the Judicial Committee in Forbes v. Maharaj Bahadur Singh

ILR (1914) Calc. 926 applies to this case, although as I shall presently show the provisions of the Act which the Privy Council had to construe

differ in some material respects from the Estates Land Act The definition of ""landholder"" would apply in my opinion to the defendant. The

somewhat hypercritical comments of the learned vakils or the respondent on the language of Section 3(5) have not convinced me to the contrary.

He laid stress upon the phrase ""owning an estate"" and argued that it predicates a subsisting interest at the time of the attachment. The next clause

entitled to collect the rents "" would certainly apply to the man whose lease had expired but to whom arrears were still due. I do not think that the

word ""owning"" was intended to negative the rights of persons who owned the estate at the time the arrears fell due. Another argument which

belongs to the same category is the distinction sought to be made between rent and arrears of rent. I am of opinion that the defendant was a

landholder when he attached the holding. One has only to look at Section 200 of the Act to see that the legislature in Madras contamplated the

existence of landholders with coordinate or mutually exclusive rights. It is different in Bengal. The definition of ""landlord"" (it is not landholder) is that

he is ""a person immediately under whom a tenant holds. This would undoubtedly exclude the defendant in Bengal, So far as I am able to see there

can be but one landlord at a time in Bengal, although there may be a proprietor and a landlord. There is no provision in the Bengal Tenancy Act

corresponding to Section 200 of our Act which limits the power of the landholder in possession. Consequently the observation of the Judicial

Committee in Forbes v. Maharaj Bahadur Singh ILR (1914) Calc. 926 that there can be but one landlord cannot apply to conditions which obtain

in Madras.

It seems to me that to hold that on the expiry of the lease, the lessee has no right of distraint would render nugatory the provision of the Act.

Sections 77 and 111 make it clear that distraint proceedings should be commenced only if the rent due during the next preceding twelve months

remains unpaid. These sections do not impose the further restriction that at the time of the distraint the distrainer must be the sole landholder. As

proceedings of this kind are prohibited during the year that rent falls due it seems to me that the legislature contemplates action being taken by the

person who had the estate when the arrears fell due. On the other hand the Bengal Legislature confers the right to distrain only on the person in

whom the estate vests at the time. Section 148(h) prohibits an assignee of a decree from distraining unless the estate itself is transferred to him.

There is no corresponding provision in the Madras Act. I do not think that the fact that in Bengal distraint proceedings have to be taken after

decree in a Civil Court affects the question. My conclusion upon this portion of the case is that the defendant was entitled to distrain.

The third question is ""could he distrain the plaintiff''s holding."" It is here that the ratio decidendi of the Privy Council decision affects the

defendant. In the Madras Act there is a provision for the landholder distraining the general movable property of the defaulter (see Section 77). In

Section 121 of the Bengal Tenancy Act which corresponds to Section 77, this power is not given. In Madras (a) the holding, (b) the crops on the

holding, (a) the ordinary movable property of the tenant and (d) the trees on the holding subject to specified exceptions can be distrained. In

Bengal the distraint can only be with reference to (a) and (6). Therefore if in the present case the defendants had distrained the movable property

or the trees, I would have held that the proceedings were not illegal. Both the landholders have the right to distrain these properties. In the case of

the holding itself Section 5 of the Madras Act and Section 65 of the Bengal Tenancy Act give the landholder or the landlord, as the case may be, a

first charge for the rent due. In Madras the first charge extends to the crops on the holding as well, but although in Bengal the crops can be

distrained the rent is not made a first charge on them. This right of first charge must be taken to have been given only to the landholder who has a

subsisting interest: see Ramaswami v. Bhasharasami ILR (1879) Mad. 67. There would certainly arise a conflict of interest in the case of the

holding being attached by two persons. The lessee that has passed out may not take action until the very end of the second year. The lessee in

possession may commence proceedings in the beginning of his second year, As some time must elapse before the holding is brought to sale the

question will have to be dealt with whether both or either of them had the right to attach and whose rights should take precedence. It was argued

that this dispute can be settled by the Collector under the second clause of Section 3(5) of the Estates Land Act. I think the clause would only

enable the Collector to recognize one of two claimants as the landholder. It would not authorize him to decide the question of priority regarding the

rights of two landholders. The Judicial Committee in the Calcutta case point out in more than one place that the right to distrain the holding is

dependent upon the rights of first charge. It is also pointed out that to acquire the right which the section gives not only the person obtaining the

decree must be the landlord at the time, but the person seeking to execute it by sale of the tenure must have the landlord''s interests vested in him.

Again we have this strong expression of opinion: ""In whose decree and on whose application is the tenure to be sold?"" The question admits of only

one answer that it is the existing landlord alone who can execute the decree, the ex-landlord is an outsider and whilst he can execute his decree

against the debtor as a money decree, he has no remedy against the tenure itself. The expression ""existing landlord"" and ""ex-landlord"" may not be

appropriate to designate the position of the two landholders in Madras, but there is no doubt that the Judicial Committee have clearly and

emphatically laid down that a holding can be sold only by the landlord who has a subsisting interest in the estate. The language of Section 127 of

the Estates Land Act is in favour of this position. Under Clause (c) if the holding is sold, the person to whom the arrears were due in the previous

fasli gets no portion of it. The arrears payable in Clause (b) will go to the attaching landholder and not to the person whose interest has ceased. I

must therefore conclude that the holding can be attached only by the landholder who has the estate still in his possession.

As I have discussed the sections at some length, I may restate my conclusions thus:

(1) A person to whom arrears are due is a landholder notwithstanding the fact that his estate has terminated.

(2) The law does not give him a first charge on the holding.

(3) He can distrain the movable property or the trees on the holding of the defaulter.

(4) He is not entitled to attach the holding. These propositions will reconcile the provisions of the Estates Land Act with the decision of the Judicial

Committee in Forbes v. Maharaj Bahadur Singh ILR (1914) Calc. 926. The Second Appeal must be dismissed with costs. The Memorandum of

Objections must also be dismissed with costs.