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PETITIONER: S.   N. SUNDALAIMUTHU CHETTIAR

       Vs.

RESPONDENT: PALANIYANDAVAN

DATE OF JUDGMENT: 12/08/1965

BENCH: MUDHOLKAR, J.R. BENCH: 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]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 480 of 1965. Appeal  by special leave from the judgment and order,  dated

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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

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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

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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. 454