SUNDARAM IYER Vs. KULATHU AIYER

JUDGEMENT

(1.) The question which we have to decide is, whether a 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 Arthur Henry Forbes v. Maharaj Bahadur Singh 23 Ind. Cas. 632 : 18 C.W.N. 747 : (1914)M.W.N. 397 : 15 M.L.T. 380 : 12 A.L.J. 653 : 27 M.L.J. 4 : 1 L.W. 1059 : 41 C. 926 (P.C.). 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 mast 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 1 of 1908 and Section 65 of Bengal Act VIII of 1885 both declare that the rent shall He 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 distaining 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.

(2.) Section 148, Clause (h), of the Bengal Tenancy Act, which declares that notwithstanding anything contained in Section 232 of the Civil Procedure Code 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 a 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.

(3.) This anomaly would present no real difficulties in Madras. Under Section 111, a landholder cannot sell the holding for arrears until the revenue year in which they became due is over, and he has under Section 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 recognise 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.