AYYAMPERUMAL GOUNDER Vs. PARTHASARATHI NAICKER

JUDGEMENT

(1.) The interesting question that arises for consideration in this Civil Miscellaneous Second Appeal is whether a person who has usufructuary mortgaged his agricultural land and has obtained a lease back of the same from the usufructuary mortgagee and is in cultivation thereof, can be regarded as a cultivating tenant entitled to the benefits of the Tamil Nadu Act XXI of 1972.

(2.) Sec. Clause (c) of that Act defines a Cultivating tenant to mean a cultivating tenant as defined in Clause (aa) of Sec. 2 of the Tenants Protection Act. Evidently the reference is to the definition in the Madras Cultivating Tenants Protection Act, as amended by Tamil Nadu Act IX of 1969 Sec. 2 clause [a] of the Act as amended reads, as follows

(3.) Both the Courts below have held that the Appellant is dis -entitled to the benefits of the Act because he is not a person in the cultivation of any land belonging to another, under a tenancy agreement, express or Implied. How can the owner of a land be his own tenant? This is the question that appears to have puzzled the Courts below and constrained them to record a finding against the Appellant. I think the question is no more intriguing than the questions can a man rape his own wife and steal his own ring? The law is not without its wits in answering such questions. The Appellant is not doubt the owner of the land, of which he is in cultivation. But then, he parted with one of the most precious rights of ownership when he usufructuary mortgaged the land and deprived himself of the right to possess and enjoy the land and to lease it out to third parties. After conferring upon the usufructuary mortgagee the right of possession' which carried with it the right to lease out the land to others and the right to evict the tenants therefrom, he obtained a lease back of the same land from his usufructuary mortgages in pursuance of a tenancy agreement between the mortgagee and himself. By virtue of this agreement, a new jural relationship Was created between the Appellant and the usufructuary mortgagee, whereby the quondam owner of the property became a mere lessee of the property with, no doubt, a right to redeem the mortgagee and thereby to recover the right to be in possession of the property on his own. I see, therefore, no anomaly about the Appellant being a cultivating tenant of land, the equity of redemption of which may, no doubt, belong to him but the right of possession to which belongs undoubtedly to his landlord, who is the usufructuary mortgagee.