S. N. Sundalaimuthu Chettiar Vs.
Palaniyandavan [1965] INSC 152 (12 August 1965)
12/08/1965 MUDHOLKAR, J.R.
MUDHOLKAR, J.R.
SUBBARAO, K.
BACHAWAT, R.S.
CITATION: 1966 AIR 469 1966 SCR (1) 450
CITATOR INFO :
R 1969 SC 764 (16)
ACT:
Madras Cultivating Tenants Protection Act, of
1955 s. 2(a) and (ee)-"carry on personal cultivation", scope
of--Son-in-law if member of family.
HEADNOTE:
The cultivating tenant of land belonging to
the appellant died leaving his widow and daughter as his heirs. The respondent,
who was the daughter's husband and the holder of a power of attorney from the
heirs, filed an application before the Sub-Collector, under s. 3(3)(a) of the
Madras Cultivating Tenants Protection Act, 1955, for depositing arrears of rent
on behalf of the heirs. The appellant objected on the ground that neither the
wife nor the daughter was a cultivating tenant under the Act, as they were not
personally cultivating the land; but the Sub- Collector overruled the objection
and directed the respondent to deposit the arrears. The appellants revision
petition to the High Court was dismissed.
In the appeal to this Court, on the question
as to whether the respondent was rightly allowed to deposit the arrears.
HELD : The orders of the Courts below should
be set aside and the matter remitted to the Sub--Collector for deciding as to
whether the respondent was putting in physical labour in the cultivation of the
land. [453 E] A son-in-law can be regarded as a member of the family, and
therefore, though the heirs of the cultivating tenant were not themselves
exerting their physical labour, if the respondent was doing so, the heirs could
be regarded as cultivating tenants under s. 2(a) and (ee) of the Act. But as
there was no finding as to the nature of work which the respondent was doing,
the matter should be remitted to the Sub-Collector for a decision. [452 G-H;
453 A-B, D]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 480 of 1965.
Appeal by special leave from the judgment and
order, dated September 4, 1964 of the Madras High Court Civil Revision Petition
No. 1251 of 1963.
A. V. Viswanatha Sastri and Naunit Lal, for
the appellant.
S. C. Agarwala, D. P. Singh, R. K. Garg and
M. K. Ramamurthy, for the respondent.
The Judgment of the Court was delivered by
Mudholkar, J. This is an appeal against an order passed by the High Court of
Madras dismissing a petition for revision under s. 115 of the Code of Civil
Procedure. In the revision application the appellant had challenged the order
of the Sub-Collector, 451 Cheranmahadevi, by virtue of which the respondents
were per- mitted to deposit the arrears of rent due in respect of a holding of
which one Kanda Devan was a tenant. The aforesaid order was made under s. 3 (3)
(a) of the Madras Cultivating Tenants Protection Act, 1955.
It is common ground that this Act which was
originally to, remain in force for a period of three years is still in force by
virtue of the provisions of amending acts passed extending its duration from
time to time. The expression "cultivating tenant" is defined thus in
s. 2 (a) of the Act :
" cultivating tenant' in relation to any
land means a person who carries on personal cultivation on such land and, under
a tenancy agreement, express or implied, and includes- (i) any such person who
continues in possession of the land after the determination of the tenancy
agreement and (ii) the heirs of such person, but does not include a mere
intermediary or his heirs;" By the Amending Act, Madras Act 14 of 1956,
cl. (ee) was added to s. 2 which purports to define the meaning of the
expression "carry on personal cultivation". Clause (ee) reads thus
"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 that land;" The provisions set out above are relevant for
consideration in this appeal. What happened was that Kanda Devan, who was the
cultivating tenant, died some time before the proceedings before the
Sub-Collector commenced. He left behind as his heirs his widow Palaniachi Ammal
and his daughter Ramalakshmi Ammal. The respondent before us is the daughter's
husband and holds a power of attorney both from her and Palaniachi Ammal. There
was default in payment of rent and so the respondent by virtue of the power of
the attorney in his favour made an application in the year 1962 before the
Sub-Collector under s. 3 (3) (a) of the Act for depositing the rental arrears.
The appellant who is the landlord contested the application on the ground that
neither the wife nor the daughter of the deceased Kanda Devan was a cultivating
tenant as defined in the Act because they were not personally cultivating the
land and that, therefore, they were not 452 entitled to the protection afforded
by the Act. The Sub- Collector over-ruled the objection and, as already stated,
directed the respondent to deposit the rental arrears. The question is whether
the respondent was rightly allowed to deposit the arrears.
It is not disputed that Palaniachi Ammal and
Ramalakshmi Ammal are the heirs of Kanda Devan, who, being a tenant, was
entitled to the protection of the Act. It is also not disputed that after the
death of Kanda Devan the land is being cultivated on behalf of these two women
and that they are not personally cultivating them, in the sense that they are
not contributing physical labour for its cultivation.
It is, however, contended on behalf of the
respondent that it is not necessary for a tenant to contribute physical labour
before he can be held entitled to the benefit of the provision. Two decisions
of the Madras High Court bearing on the point were cited before us. The first
of these is Kunchitapatham Pillai v. Ranganatham Pillai.(1) In that case
Balakrishna Iyer J., held that in order to qualify as a cultivating tenant
within the meaning of the definition given in the Act it was not necessary that
a person should put his own muscular effort into the soil. Construing a similar
expression occurring in the Tanjore Tenants and Pannaiyal Protection Ordinance
IV of 1952 Rajagopala Ayyangar J., observed in an unreported case W. P. No. 426
of 1953 :
"Before a person can be a cultivating
tenant, he or members of his family must contribute his or their own physical
labour. I do not consider that the supervision of panniyals could be
characterised as physical labour within the meaning of the definition
clause." The view taken by Balakrishna Iyer J., was held to be too wide in
Abubucker Lebbai v. Zamindar of Ettayapuram.(2) Rajamannar C.J., who delivered
judgment of the Court, after considering the views of Balakrishna Iyer J., and
Rajagopala Ayyangar J., and also certain English decisions agreed with the view
of the latter, and in our view, rightly.
It is, however, said that though the heirs of
Kanda Devan are not themselves exerting their physical labour the respondent
who is the holder of a power of attorney from them is doing so and that,
therefore, the heirs must be regarded as cultivating tenants. Reliance is
placed in this connection on cl. (ee) which gives the meaning of the expression
"to carry on personal cultivation". Before the heirs can be given the
benefit of this definition it is necessary for them to establish that someone
is contributing (1) [1958] 1 M. L. J. 272.
(2) [1961] 1 M. L. J. 256.
453 his physical labour in the cultivation of
the land and that someone is a member of their family. Mr. S. C. Agarwal,
appearing for the respondent, said that a son-in-law can be regarded as a
member of the family because the word 'family' is not to be construed in a
narrow sense or meaning only a member of a Hindu joint family. He is quite
right there because the Act applies to all tenants irrespective of the personal
laws which govern them. In Webster's New World Dictionary one of the meanings
of family is "a group of people related by blood or marriage
relatives". A person can, therefore, be properly regarded as being the
member of his wife's family and not merely of his father's family.
Mr. Viswanatha Sastri for the appellants,
however, contends that even so the respondent is not contributing any physical
labour but is only doing some kind of supervision. He further points out that
according to the decision in Abubucker Lebbai's case(1) the work of supervision
is not tantamount to physical labour. There is, however, no finding by the
Sub-Collector as to the nature of work, if any, which the respondent is doing
in connection with the supervision of the land in question. In the absence of
such a finding and in the absence of any relevant material before us we cannot
deal with this argument. We do not even know whether there were any pleadings
of the parties on the point and whether any evidence was led thereon by the
parties. In the circumstances we think that in the interest of justice we
should set aside the orders of both the courts below and remit the matter to
the Sub-Collector for deciding as to whether the respondent was putting in
physical labour in the cultivation of the field. If there is no material on
record bearing on the point he should give opportunity to both the parties to
make necessary pleadings and to adduce evidence.
Accordingly we allow the appeal set aside the
decisions of the courts below and remit the matter to the Sub-Collector for a
decision adverting to what we have said in our judgment. Costs in this Court
will be paid by the appellant as ordered on May 3, 1965. Costs in the two
courts below will abide the result.
Appeal allowed.
(1) [1961] 1 M. L. J. 256.
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