OFFICIAL RECEIVER WEST TANJORE Vs. SAKKUWAR BAI AMMAL

JUDGEMENT

(1.) The only point for determination in this second appeal is whether the lower Courts went wrong in holding that a landholder who had obtained a decree against a tenant, under the Madras Estates Land Act, but has afterwards ceased to be his landholder, and the relationship between the landholder and tenant has ceased to exist, cannot execute the decree in a revenue Court and realise his arrears in a revenue sale and should execute it in a civil Court. The lower Courts relied on the rulings in Sundaram Aiyar v. Kulathu Aiyar, 39 Mad 1018 : (A.I.R. (3) 1916 Mad. 540) and Suramma v. Suryanarayana Jagapathiraju, 42 Mad. 114 : (A. I. R. (6) 1919 Mad. 733). In Sundaram Aiyar v. Kulathu Aiyar, 39 Mad. 1018 : (A.I.R. (3) 1916 Mad. 540), it has been held by a Bench of this Court that the provisions of the Madras Estates Land Act do not empower a person, who was a lessee of an estate, to take proceedings after the expiry of his lease to sell the tenant's holding for arrears of rent due for a fasli covered by the period of his lease, though it was held also that a person to whom arrears are due is a landholder notwithstanding the fact that his estate has terminated, but that the law does not give him a first charge on the holding or the crops thereon, and he can merely distrain the moveable property or the trees in the holding of the defaulter and that he is not entitled to attach the holding. In the course of his judgment, Seshagiri. Aiyar J. relied on the ruling of the Privy Council in A. H. Forbes v. Maharaj Bahadur Singh, 41 Cal. 926 : (A. I. R. (1) 1914 P. C. 111) and said that the Judicial Committee bad clearly and emphatically laid down that a holding can be sold only by a landholder who had a subsisting interest in the estate. In Suramma v. Suryanarayana Jagapathiraju, 42 Mad. 114 : (A. I. R. (6) 1919 Mad. 733), Phillips and Kumaraswami Sastri JJ. have held that a sale in a revenue Court passes the property to the purchaser free of encumbrances except those specified in Section 125, Madras Estates Land Act. Therefore, it is apparent that if the appellant is allowed to bring the holding to sale in a revenue Court, he will get an undoubted advantage and priority over the present landholder (the appellant has ceased to be a landholder after 1940) regarding his rent for all the years from 1940 till now, which I do not consider the Estates Land Act intends to give to a person regarding whom the relationship between landholder and tenant has ceased. In Krishnapada Chatterji v. Manade Sundari Ghosh, 69 Cal. 1202 : (A. I. R. (19) 1932 Cal. 321 S.B.), seven judges of the Calcutta High Court have held, following the Privy Council ruling in A. H. Forbes v. Maharaj Bahadur Singh, 41 Cal. 926 : (A. I. R. (1) 1914 P. C. 111), that only a landlord who has not parted with his interest, and regarding whom the relationship of landlord and tenant subsists, can bring the holding to sale in a revenue Court. They specifically held that the person seeking to exe-cute a decree by sale of the tenure or holding must have the landlord's interest vested in him and that the Page 2 of 5 Official Receiver, West Tanjore and Anr. vs. Sakkuwar Bai Ammal (18.03.1949 - MA... 6/19/2007 right to bring the tenure or holding to sale exists only so long as the relationship of landlord and tenant exists and that it is the existing landlord alone who can execute the decree in a revenue Court. In Suryanarayana v. Ramachandrudu, 37 M. L. W. 655 : (A.I.R. (19) 1932 Mad. 716), Anantakrishna Aiyar J. relied on the above ruling of the seven judges of the Calcutta High Court and held that only so long as the relationship of landlord and tenant existed could a decree for rent be executed in a revenue Court by bringing the holding to sale. He remarked further : "It would also be kept in mind that such decrees for rent could also be executed by the ordinary civil Courts in which case, it has been hold, that the sales would not be free of encumbrances ..... The relationship of 'landholder and ryot' should also (it has been held) continue till actual sale by the revenue Court." In Vyraperumal v. Alagappa, 55 Mad. 468 : (A.I.R. (19) 1932 Mad. 189), Waller and Krishnan Pandalai JJ. have held that a landholder can bring a holding to sale only so long as the relationship of landholder and ryot continues. In that case it has been specifically remarked that the decision of the Privy Council in A. H. Forbes v. Mahraj Bahadur Singh, 41 Cal, 926 : (A. I. R. (1) 1914 P. C. 111), already referred to, has been understood in this Court in Venkata Lakshmamma v. Seethayya, 43 Mad. 786 : (A. I. R. (7) 1920 Mad. 183) as applicable to cases under the Madras Estates Land Act and as meaning that the claim of first charge is available only to a landlord and while the relationship of landlord and tenant subsists.

(2.) As against all this imposing array of decisions, Mr. Subramaniam Pillai, for the appellant, relies on three facts. The first is certain observations of Krishnan and Sadasiva Aiyar JJ. in Venkatalakshmamma Garu v. Achi Reddi, 44 Mad. 433 : (A. I. R. (8) 1921 Mad. 152 F. B.) Krishnan J. remarked that the Bengal Tenancy Act differed in some respects from the Madras Estates Land Act and especially regarding the definition of a "landholder" and the right of a landholder to bring a holding to sale. But he did not give any decision that a landholder in respect of whom the relationship as landholder and tenant had ceased could still bring the holding to sale in execution in a revenue Court. Sadasiva Aiyar J. remarked that, after having considered his previous opinion that a landholder who had ceased to be a landholder regarding the tenant could not bring the holding for sale in a revenue Court, he was of opinion that his former opinion was unsound as it failed to give sufficient weight to the differences both in language and policy found on a comparison of the provisions of the Bengal Tenancy Act and the Madras Estates Land Act. He also did not give any decision that a landholder who had ceased to be a landholder in respect of the tenancy could attach the holding and bring it to sale in a revenue Court. He only expressed his opinion. In other words, his remarks were obiter regarding the actual question in issue in this case, viz., whether such a landholder can bring the holding to sale in a revenue Court in execution after he had ceased to be the landholder of the tenant in question. These remarks of Krishnan and Sadasiva Aiyar JJ. were made in 1921, and the decisions in Suryanarayana v. Ramachandrudu, 37 M. l. w. 655 : (A. I. R. (19) 1932 Mad. 716) and Vyraperumal v. Alapappa, 55 Mad. 468 : (A. I. R. (19) 1932 Mad. Page 3 of 5 Official Receiver, West Tanjore and Anr. vs. Sakkuwar Bai Ammal (18.03.1949 - MA... 6/19/2007 189) were rendered in 1932 and 1931 respectively, reinforcing the former view.

(3.) It is obvious that even if I differ from the views expressed in Sundaram Aiyar v. Kulathu Ayyar, 39 Mad. 1018 : (A. I. R. (3) 1916 Mad. 540) ;Venkata Lakshmamma v. Seetayya, 43 Mad. 786 : (A.I.R. (7) 1920 Mad. 183) ; Suryanarayana v. Ramachandrudu, 37 M. L. W. 655 : (A. I. R. (19) 1932 Mad. 716) and Vyraperumal v. Alagappa, 55 Mad. 468 : (A. I. R. (19) 1932 Mad. 189) the decisions by three Benches and a single Judge of this Court, I would not be entitled to decide differently now but would be compelled to refer the matter to a Full Bench, as none of those decisions has been formally overruled or even specifically dissented from. But I also agree with the views of the three Benches and the single Judge in question, and so see no reason to refer the matter to a Full Bench. It seems to me clear that the policy of the Madras Estates Land Act is to give the landholder who is the present landholder in respect of the holding and ryot preference regarding the recovery of his rent free from all encumbrances and charges for arrears.