Officiating C.J.
1. The question referred to us is this.
Whether the word tenant in Section 20 Clause 3 of Madras Act IV of 1897 includes the grantees of a rent free inam in a Zamindari
Clause (3) referred to runs thus:
The amount so apportioned shall be recoverable by the proprietor from the tenants concerned in the same manner as if it were an arrear of rent due by a tenant to his landlord.
2. It will be seen that the clause contains the words 'tenants' and 'tenant.' The reference speaks of 'tenant': but I feel no doubt that the word of which our interpretation is desired is the word 'tenants' preceding the word 'concerned.'
3. On general principles I should much like to adopt Spencer, J.'s interpretation. There is no reason why the holder of a rent free Inam should not contribute equally with his neighbour, a ryot paying rent, to the cost of the survey, which is for the benefit of both. And Section 10 Which governs the case of Government land, and speaks of the registered holder would apparently affect Inamdar equally with the ryot.' But we have to interpret the section as it stands: and I am reluctantly forced to the other view.
4. It is not of much use referring to other Acts in which the term tenant is defined: we have not been referred to any 'Act in which the word tenant is used without special definition and in which it has been held to cover a person who is not liable to pay rent. Nor do I feel justified in placing much reliance on English definitions. What seems to me an insuperable obstacle to the acceptance of the broad interpretation favoured by Spencer, J. is the occurrence of the word 'tenant' near the end of the clause. Here it clearly means a person who holds land subject to the payment of rent: and I find it impossible to hold that the Legislature used the word tenant (or tenants) in two different senses in the same clause and in such close juxtaposition.
5. No doubt the charges have to be apportioned, under Clause (1) of the section among all the lands surveyed: but it does not follow that a share is recoverable in each case: and it is only Clause (3) which makes it recoverable under the Act.
6. As the learned vakil for Respondent points out, a provision of law for the recovery of money has to be strictly construed. I must answer the question in the negative - merely adding that it is worth consideration whether the Act should not be amended in this respect.
Kumaraswami Sastri, J.
7. I agree. The word 'tenant' ordinarily means a person who holds lands or buildings of another in consideration of a premium paid or rent either in money, kind or service. So far as I am aware this is the sense in which the term is used in both the local and imperial Acts. Wherever a different or extended meaning is intended the legislature has taken care to define the word tenant so as to make it capable of including persons who in the popular sense would not be called tenants or who hold lands absolutely. For example in the Local Boards Act (Madras Act V of 1884) tenant is defined as including 'all persons who whether personally or 'by an agent occupy land under a landholder or an intermediate landholder and whether or not they pay rent to such landholder or intermediate landholder; as the case may be.' This is so far as I am aware the only Madras Act where the word tenant is used in a wide sense so as to include persons not paying rent. In the Transfer of Property Act, the Rent Recovery Act and the Estates Land Act, tenancy implies the holding of land on payment of rent or premium.
8. I do not think it can be said that a grantee of a rent free inam is a tenant of the Zamindar. He is the owner for all practical purposes and it will be doing violence to the plain meaning of the word 'tenant' to say that he is a tenant of the I Owner of the estate.
9. I do not think that the English law as to land tenures affords much help in construing the word tenant in Indian Enactments. Even an absolute owner of land is spoken of as a tenant in fee simple. It would think lead to many anomalies if we were to hold that every grantee of land in India is a tenant and it is clear that the legislature in dealing with landlords and tenants did not ordinarily depart from the ordinary and popular meaning of the word tenant.
10. It has been argued that the survey of the estate by the Zemindar under the provisions of the Survey and Boundaries Act benefited the inamdar just as much as the tenants and there is no reason for making the tenant liable to bear a share of the expense and not the inamdar. This is a good reason for the legislature making the inamdar liable by a definition similar to that in the Local Boards Act of 1884 which was before the legislature when it passed the Survey and Boundaries Act in 1897 or for a provision similar to the Bengal Survey Act of 1875 where rent free lands are to be deemed to form part of the tenure within the local boundaries of which they are included. It is a rule of construction that ordinary terms and expressions are to be construed as they are understood in common language and that the obvious and popular meaning of the language should as a general rule be followed, and that statutes imposing a burden ought to be strictly construed. I do not think it is a sufficient reason to give the word tenant an extended sense simply because a person would otherwise escape a liability especially when the legislature has in other enactments passed prior to the Surveys Act taken care to make such persons liable by using apt words. It is a question for the legislature whether the Act should not be amended.
11. Turning to the section itself Clauses 1 and 2 provide for the apportionment among the lands which have been surveyed the whole or any specified portion of the cost of such survey and Clause 3 enacts that 'the amount so apportioned shall be recoverable by the proprietor from the tenants concerned in the same manner as if it were an arrear of rent due by a tenant to his landlord.' The object was to enable the landlord to take advantage of the remedies open to him for the recovery of rent and the clause contemplates cases where rent is payable by the party liable. The word tenant in the latter portion of the sentence means a person who pays rent to the landlord and there is no reason to give the word tenant occurring a few words before a different meaning.
12. I would answer this question referred to us in the negative.
Odgers, J.
13. I agree. The question referred to us is whether the word tenant in Section 20(3) of Madras Act IV of1897 includes the grantee of a rent free inam in a Zemindari. The reference is the result of a difference of opinion between Spencer and Ramesam, JJ. The clause runs thus: 'The amount so apportioned shall be recoverable by the proprietor from the tenants concerned in the same manner as if it were an arrear of rent due by a tenant to his landlord '. Spencer, J. held that the word 'tenant' in the clause in question had a wider meaning than 'lessee' and corresponds to an occupier under any title on the analogy of the use of the word in English Law in combinations such as 'tenant in fee', 'tenant for life', 'tenant for years', 'Joint tenant' etc. The learned Judge draws attention to the definition of tenant in the Local Boards Act Section 3 (xxvii), Madras Act V of 1884 where it includes all person's who occupy land under a landholder or an intermediate landholder, and whether or not they pay rent to such landholder or intermediate landholder. Reference may also be made to Sections 64(ii) and 73 (third clause) of the same Act. It is however to be noted that Section 3 begins thus. 'In this Act unless there is something repugnant to the subject or context'; the definition is therefore confined to the Act. In the Bengal Survey Act (V of 1875) Section 17 it is enacted that 'all lands held without payment of rent, not being entered on the Collector's Register of revenue-free tenures of the district, shall, for the purposes of this Act, be deemed to form a part of the tenure within the local boundaries of which they may be included'. This does not define tenant, and restricts the above definition to the purposes of the Act. It does not appear to me that any positive inference can be drawn from the provisions of other Acts on distinct subjects. No instance occurs to me and none was quoted at the bar of the use in Indian enactments of the word 'tenant' in the English real property sense - a sense derived from the history of the development of tenure in the feudal law which gradually displaced the old alodial holdings. In this case there is admittedly no relationship of landlord and tenant and it was;not argued that the inamdar holds of or from the proprietor in any manner. For the appellant reliance was placed that the first two clauses of Section 20 of Act IV of 1897 throw the incidence of the cost on the land's not on the individual who is to pay and who is only referred to in the third clause.
14. There seems no reason either in law or equity why a holder of a free inam should not for the purposes of the Act be exactly in the same position as a tenant paying rent, but we can only interpret the language of the legislature as we find it. On the other hand the use of the word 'tenants' and a 'tenant' within a line of each other in the same clause is pointed to as suggesting the improbability of the same word being used in two different meanings. It is possible of course to say that the latter use of the word is not only illustrative of the manner in which the charge is to be recovered from the individual concerned; if so, the collocation is to say the least unfortunate and in the absence of authority as to the use of the word 'tenant' in Indian Enactments in the English Law sense, I must reluctantly hold that the word 'tenants' is confined to those who pay rent to the proprietor. I would therefore answer the reference in the negative.