JASWANTRAI TRICUMLAL VYAS Vs. BAI JIWI

JUDGEMENT

(1.) A question of some importance arises for the decision of this Full Bench. The facts may be simplified in order to pose the question clearly. A landlord flies an application for ejecting his tenant on the ground that he is in default for payment of rent. The tenant has no answer to the landlord's application. The landlord Joins in that application, which is preferred before a Revenue Authority, two persons who were sub-tenants of the tenant and to whom the land was let out, and the landlord contended that if the tenancy of the tenant could be legally terminated, the sub-tenants had no right to continue to remain on the land. The question that we have to consider is whether the Tenancy Act gives any protection to these two subtenants, a very important and salient feature of this case is that the contract of sub-tenancy between the tenant and the sub-tenants was a legal contract and the sub-tenants were cultivating the land lawfully. It is true that under the ordinary law of the land, under Section 111 (c) of the Transfer of Property Act, when the tenancy, was terminated the sub-tenants would have no right to remain on the land, and that the contract between the subtenants and the tenant would automatically come to an end with the termination of the tenancy between the landlord and the tenant. Has the Tenancy Act made any change in this ordinary law and given a protection to the sub-tenants which the Transfer of Property Act does not vouchsafe to him?

(2.) NOW, we are concerned with the Tenancy Act of 1943 and the relevant section that we have to consider is Section 4 which provides that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not and then we have three categories which are excepted. One is a member of the ownsr's family, the second is a servant, and the third is a mortgagee in possession. Prom the language of this section it is clear that the Legislature constituted a class of persons into tenants who in ordinary law and who by the strength if any contract would not be tenants. The expression "deemed to be a tenant" makes it clear that but for the legal fiction created by Section 4 the person would not be under the law a tenant. The conditions to be satisfied before a person can become, as it were, an artificial tenant under Section 4 would be that he must lawfully cultivate any land belonging to another person. In our opinion, it is not possible to contend that Section 4 was dealing with a class of contractual tenants. If a tenant had his rights under a contract, then it was not necessary specifically to provide by Section 4 that a person should be deemed, to be a tenant and should have his rights as a tenant. The definition of "tenant" in the Act makes the position even clearer. Section 2 (13) defines "tenant" as meaning an agriculturist who holds land on lease and Includes a person who is deemed to be a tenant under the provisions of this Act. Therefore, the definition of "tenant" falls into two parts. One is a tenant who is a contractual tenant under a lease, and the other class is a tenant who is deemed to be a tenant under the provisions of this Act, and the second part of the definition would apply to 3. 4 which, as already pointed out, creates a class of artificial tenants. There is also the definition of "agriculturist" which means a person, who cultivates land personally. Therefore, in order that the definition of a tenant should be satisfied, a person should not merely hold land on lease, nor must he merely be deemed to be a tenant under the provisions of the Act, but he must also cultivate land personally. Mere possession of land would not be sufficient.

(3.) NOW, under Section 14 of the Act, one of the grounds on which a tenancy can be terminated is that the tenant has sub-let the land, and under Section 27 a sub-tenancy has been made Invalid. But at the time when the sub-tenancy in this case was created the sub-tenancy was regulated by the earlier Act. Act 29 of 1939, and at that time the subtenancy was not declared to be invalid", and therefore on the facts of this case it is clear that the two sub-tenants came on the land under a valid sub-tenancy and therefore when they were cultivating the land they were cultivating the land not as trespassers but under a valid contract between them and the tenant. It could therefore be definitely said of these two sub-tenants that within the meaning of Section 4 they were lawfully cultivating the land. If that be the true position, it is difficult to understand how on the termination of the tenancy of the tenant these two sub-tenants could be evicted by the landlord. Undoubtedly, under the provisions of the Transfer of Property Act the contractual tenancy between the tenant and the sub-tenants would come to an end, but on the termination of that contractual tenancy, by reason of the provisions of Section 4, a statutory tenancy would come into existence. Whereas be-fore the termination of the tenancy the sub-tenants were protected by the terms of the contract between them and the tenant, on the termination of that contract they could look to the statute for their protection.