ANUMALA ANKAMMA Vs. KOMARAVOLU VENKATA SUBBAYYA

JUDGEMENT

(1.) The question which falls for decision in this appeal is whether Section 146 and Section 147 of the Madras Estates Land Act, 1908, are intended to have retrospective effect. Before considering the provisions of the Act I will state how this question arises. The appellant is a ryot in possession of a piece of land known as Survey No. 191/1. The land forms part of a holding granted by the Rajah of Venkatagiri. There are five lots bearing survey numbers in this holding, the other four being in the possession of one Venkata Subbayya, the pattadar. Venkata Subbayya is the son of one Vobayya, who in 1903 sold to the appellant and two others the land described as Survey No. 191/1. The appellant's co-owners eventually gave up their interests in the land and he alone cultivated it. Venkata Subbayya failed to pay to his landlord the rent due by him for the years 1919, 1920 and 1921 in respect of Survey Nos. 246, 445, 679 and 305 which comprised the remainder of the holding. The result was the landlord instituted a rent suit before the Sub-Collector, Ongole, in 1922 and obtained a decree. In execution of that, decree the land held by the appellant was sold as being part of the area covered by the patta. The purchaser was one Poluri Yellamraju, who on the 28th November, 1928, conveyed the land to one Komaravolu Venkata Subbayya.

(2.) The appellant was recognised by the landlord as the holder of Survey No. 191/1 after his purchase in 1903 and he continued to pay year by year the rent due by him in respect of it. It was held by the trial Court in the suit out of which this appeal arises that Venkata Subbayya had deliberately defaulted, knowing that a rent suit could be filed. His scheme was to induce the decree-holder to, sell in execution the appellant's land as it formed part of the holding and thus give him an opportunity of buying it at the Court auction. Of course, a scheme of this nature could only be carried through with the connivance of the Subordinate Officials of the Zamindar. The present suit was filed in the Court of District Munsif of Ongole by Komaravolu Venkata Subbayya on the 29 April, 1929, six years after the Court auction had taken place, to recover possession of the property from the appellant. The District Munsif dismissed the suit, holding that the appellant's title was not affected by the sale, because he had no notice of the suit or of the sale, he was not made a party to any of the proceedings, he had been in possession of the land since 1903, and he had regularly paid his rent to the landlord, who had recognised him as his tenant. The District Munsif also held that Poluri Yellamraju and Komaravolu Venkata Subbayya were creatures of Venkata Subbayya. Poluri Yellamraju had bought the property at the Court auction on behalf of Venkata Subbayya and had transferred it to Komaravolu Venkata Subbayya, who was also his benamidar. The plaintiff appealed to the Subordinate Judge of Guntur who held that the evidence was not sufficient to justify the conclusion that the auction purchaser was a benamidar of Venkata Subbayya, although he appears to have accepted the finding that the plaintiff was. The Subordinate Judge set out the evidence on which the District Munsif had held that the auction purchaser was a benamidar and apparently did not dispute its accuracy. If true, the evidence was sufficient to support the District Munsif's finding that the auction purchaser was a benamidar. Accepting the evidence as true, there was no other conclusion really open. Holding that the auction purchaser was not a benamidar and relying on the decision in Sri Mahant Prayag Dossjee Varu V/s. Sarangapani Chetty (1922) 17 L.W. 361, where it was held that the Madras Estates Land Act had retrospective effect the Subordinate Judge allowed the appeal and decreed the suit. The appellant then appealed to this Court, but in his memorandum of appeal he took no exception to the finding of the Subordinate Judge that the auction purchaser was not a benamidar. He challenged the correctness of his decision on legal grounds and left the facts entirely alone. It is unfortunate that he did so because it was open to him to have challenged the decision of the Subordinate Judge with regard to the position of the auction purchaser. It is, however, too late in the day now for this question to be raised, and the Court is merely concerned with the question whether the decision of Burn, J., who heard the appellant's appeal which followed the decision of the Subordinate Judge, is right in law. Burn, J., dismissed the appeal on the ground that he was bound by the decision in Sri Mahant Prayag Dossjee Varu V/s. Sarangapani Chetty (1922) 17 L.W. 361.

(3.) Before referring to what was said in that case I will set out the provisions of Section 146 and Section 147 of Madras Estates Land Act. Section 146 provides that whenever a holding or any portion thereof is transferred by the Act of a ryot, or in execution of a decree or order of a Civil Court passed against him, or by a sale for arrears of Government revenue or for any demand recoverable as arrears the transfer shall, subject to the provisions of Section 145, be recognised by the landholder if notice in writing be communicated to him by the transferor and transferee or a certified copy of a decree or order of a Civil Court establishing a transfer is produced, or in cases in which a transfer is effected by sale under the order of a Court or public officer the sale certificate or a certified copy is produced. On notice in writing given by the transferor and transferee or by the co-sharers, as the case may be, the landholder is required to enter into separate engagements with the holders of the sub-divisions from the revenue year next succeeding that in which the notice has been given. Therefore under this section the landlord is not bound to recognise a transfer unless he receives a notification in the manner prescribed by the section. Section 147 says that all acts or proceedings commenced or had under the Act against the transferor or the co-sharers prior to the giving of the notice under Section 146 or prior to the production of the copy of the decree or order or certificate of sale under Section 146 in so far as such acts and proceedings affect or purport to affect the land on which the arrear is due, the crops and the products, shall as against the transferee or co-sharer be as valid and effectual as if such acts and proceedings had been commenced or had against the transferee or co-sharer himself, and he had been the defaulter. In other words all proceedings which have been commenced before notice has been received by the landlord shall be effective against the transferee.