CHANDRASEKARAN Vs. KUNJU VANNIAR

JUDGEMENT

(1.) THE Letters Patent Appeal is posted before a Full Bench, because Kailasam, J. and Mahajan, J., differed on the question whether the tenants under a usufructuary mortgagee are entitled, after redemption of the usufructuary mortgage, to claim protection under the Tamil Nadu Cultivating Tenants Protection Act, 1955, as against the mortgagor. The usufructuary mortgage was created on 2 -3 -1924. Respondents 1 and 2 were inducted into the land by the usufructuary mortgagee in 1957 as tenants. On 19 -6 -1964, the mortgage was redeemed. The mortgagor -owner brought the, suit for possession and mesne profits. The first two Courts agreed in decreeing the suit. But in second appeal Ramanujam, J., reversed the decree relying on Prabhu v. Ramdeo, AIR 1966 SC 1721, and dismissed the suit. But he granted leave. In the Letters Patent Appeal Kailasam, J. took the view that the respondents were not entitled to the statutory protection, while Maharajan, J., took the opposite view.

(2.) THE Tamil Nadu Cultivating Tenants Protection Act, 1955, was enacted for the protection from eviction of cultivating tenants in certain areas in the State of Madras. It provided for statutory protection, eviction on certain grounds, right of tenant to restoration of possession in certain events and right of landlord to resume for personal cultivation. 'Cultivating tenant' is defined by Section 2 (aa) in relation to any land as a person who carries on personal cultivation on such land under a tenancy agreement, express or implied. The definition also includes "any such person as is referred to in sub -clause (1) who continues in possession of the land after the determination of the tenancy agreement". By Act IX of 1969, an amendment was introduced bringing within the scope of definition of 'cultivating tenant' a sub -tenant as well. This was done in view of certain earlier decisions of this Court as for instance Ganapati v. Ayyakannu, ILR (1961) Mad 452. A landlord is defined by the section in relation to a holding or part thereof as a person entitled to evict the cultivating tenant from such holding or Part. 'Holding' under Section 2 (a) means a parcel or parcels of land held by a cultivating tenant. 'Land' as defined means land used for the purpose of agriculture or horticulture and it includes certain things with which we are not concerned in this case. A person is said to carry on personal cultivation on a land when he contributes his own physical labour or that of the members of his family in the cultivation of the land. The term 'cultivating tenant' would extend also to his heirs but not to a mere intermediary or his heirs. The protection of a cultivating tenant is afforded by means of Section 3 which is -

(3.) ON the construction we have thus placed it will be obvious that, even though the usufructuary mortgage on the strength of which the mortgagee let out to the tenant has been redeemed, since the tenancy originated in an agreement and since because of the redemption such an agreement came to an end but the tenant continued to be in possession, he will squarely be within the inclusive definition of the term 'cultivating tenant'. On that view, the reasoning in ILR (1961) Mad 452, does not appear to us to be correct. There is no question of the usufructuary mortgagee conferring upon the tenant a higher title than what he is possessed of. What happens for purposes of the inclusive definition is that no higher title than what the usufructuary mortgagee possessed is conferred on the cultivating tenant. But the statute intervenes at the determination of the tenancy agreement and enjoins that if the contractual tenant within the meaning of the first part of the definition of 'cultivating tenant' continues in possession of the land he would be entitled to protection as a cultivating tenant. A reference was made in that case to the observations of Balakrishna Ayyar, J., in Ramaswami Naidu v. Marudaiveera Moopan, 1959 -1 Mad LJ 2S. Both ILR (1961) Mad 452 and 1959 -1 Mad LJ 25 deal with cases of sub -lessees. They were all of the view that sub -lessees were not within the inclusive definition. The reasoning of Balakrishna Ayyar, J. which Jagadisan, J. and Kailasam, J. accepted in ILR (1961) Mad 452, was this :