Arnold White, C.J.
1. In Second Appeals Nos. 1095 and 1096 of 1900.--The construction of the last paragraph of Section 10 of the Rent Recovery Act, 1865, seems to me to be clear. The section enacts that if within a given period from the date of the Collector's judgment the defendant does not accept the patta as approved or amended the defendant may be ejected. The word 'accepted' implies an offer and the use of the word 'default' also shows that the Legislature intended there should be an offer as a condition precedent to an order for ejectment being obtained. In the case of Court of Wards v. Darmalinga I.L.R. 8 Mad. 2 the suit was for rent. I cannot adopt the view that the judgment of the Collector amending the patta constitutes a sufficient tender to entitle the landlord to eject the tenant and if the decision is to be regarded as an authority for this proposition, I respectfully dissent from it. The provision in Section 10 is a penal one and ought to be construed strictly. It seems to one impossible to adopt the construction for which the plaintiff contends without doing violence to the express words of the section. The question of the right to eject when there had been no offer of the amended patta was not discussed in the case of Munisami Naidu v. Perumal Reddi I.L.R. 23 Mad. 616. I think our answer to the question which has been referred to us should be in the negative.
2. In Second Appeals Nos. 1271 and 1272 of 1900.--In these cases it was contended that where the Collector is of opinion that the patta is a proper one and passes a judgment directing the defendant to accept it, an offer of the patta after judgment is not a condition precedent to ejectment. The argument was that whatever may be the true view when the Collector is of opinion that the patta tendered is not a proper one and decides, under paragraph 4 of the section, what patta ought to be offered and passes a judgment ordering the defendant to accept it, when the Collector is of opinion that the patta is a proper one and passes a judgment, under paragraph 3 of the section, directing the defendant to accept it, the defendant is bound, as from the date of the judgment, to accept the patta which has already been offered to him and consequently no tender after judgment is required. I am certainly not disposed to apply this doctrine of constructive offer by relation back in construing the plain words of a penal enactment. The last paragraph of Section 10 draws no distinction between a patta as 'approved' and a patta as 'amended' and I think the word 'accepted' must be construed in both cases in the same way as indicating that an offer after judgment must be made by the landlord before he can eject.
3. I think our answer should be in the negative.
Bhashyam Ayyangar, J.
4. After a full consideration of the arguments advanced by the learned pleaders for the landlord in these cases, I see no reason to change the opinion which I have formed in the Order of Reference made in Second Appeals Nos. 1095 and 1096. I shall only notice the special arguments which have been advanced before the Full Bench.
5. The position taken on behalf of the landlord is that in a suit instituted under Section 9 of the Bent Recovery Act, if the Collector be of opinion that the patta which had been tendered to the tenant is a proper one, it is not necessary under Section 10 that the landlord should, after judgment, make a fresh tender of the patta but that the tenant should suo motu signify to the landlord his acceptance of the patta which had been tendered before suit but which he then did not accept, and should execute a muchilika in accordance therewith and that if he neglects to do so within ten days from the date of the Collector's judgment, the Collector is bound to eject him on application made to him by the landlord. If in such a suit the Collector should be of opinion that the patta which had bean tendered is not a proper one, he should decide what patta ought to be offered by the landlord, but that even in such a case there need be no tender, after judgment, by the landlord, of a patta as settled by the Collector but that the judgment itself operates under Section 72 as tender of such an amended patta and that if the tenant neglects for ten days to signify to the landlord his acceptance of the offer made by the judgment and to execute a muchilika in accordance therewith, the Collector shall pass an order for ejecting the tenant on application made to him by the landlord.
6. It is urged that the execution by the tenant of a muchilika in accordance with the terms of the patta as approved or amended by the Collector and the delivery of the same to the landlord will amount to an 'acceptance' of the patta. In order to realise the full force of the argument, I put to the learned pleader for the landlord in Second Appeals Nos. 1271 and 1272 the specific question as to whether a tenant would incur a forfeiture of his holding under Section 10 if, after judgment which approved of the patta tendered to him, he communicates to the landlord his acceptance of the terms of the patta and desires him to send him the patta, but the landlord does not do so and the tenant does not execute a muchilika and send the same to the landlord within ten days. His answer was that he would incur the forfeiture unless it could be shown that ha could not possibly execute a muchilika by reason of his not having been furnished by the landlord with the patta. It can scarcely ever be held that the tenant would not be in a position to deliver the muchilika by reason of the landlord not sending him the patta after judgment; for the patta which had been tendered or a copy thereof would of course be an exhibit in the suit and the judgment would show that it had been approved by the Collector. If in cases in which the Collector has not approved of the patta, but settled what it ought to be, the contention be upheld that the judgment itself operates as a tender of the patta as thus amended, it will follow that the landlord need not tender the tenant such an amended patta even if he applies to him for it. The argument therefore amounts to this, viz., that in no case need a landlord grant a patta to the tenant after judgment, even if the tenant applies to him for it, but that the tenant will be ejected if he fails to execute and deliver a proper muchilika within ten days from the date of judgment.
7. The whole argument, in my opinion, proceeds upon a misapprehension of the scheme and policy of the Rent Recovery Act as to 'pattas and muchilikas' and of the meaning of the word 'accept' in Section 10 of the Act. Pattas and muchilikas are documents, the former being executed by the landlord and the latter by the tenant which, at the option of the landholder, shall be a counter-part of the patta or a simple engagement to hold according to the terms of patta (vide Section 4). The policy of the Act is that, as far as practicable, these documents should be exchanged between the landlord and the tenant unless both parties shall have agreed to dispense with them (Section 7). If a tenant does not accept a patta and execute a muchilika, the landlord tenders to the tenant such a patta as he is bound to accept (vide Section 7) and the tender is made by delivering a copy to the tenant or to some adult male member of his family at his usual place of abode or to his authorised agent or where such service cannot be effected, by affixing a copy of the patta on some conspicuous part of his last known residence or on some conspicuous part of the land to which it refers (vide Section 39). Pattas and muchilikas should not be confounded with 'proposal and acceptance' as they are understood in the Law of Contracts. Each is a formal record in writing of the terms of a pre-existing tenancy, whether such terms be the result of a contract or otherwise. Such documents as a general rule are exchanged annually, though they need not necessarily be for a term of one year only--in which latter case they need not be exchanged annually. The exchange of these documents necessarily implies that the tenant receives the patta and the landlord the muchilika and the provisions of Section 10 are in furtherance of this policy of the Act by directing the tenant to accept the patta as approved or amended by the Collector and to deliver to the landlord a corresponding muchilika. If a fresh tender after judgment and acceptance of the patta so tendered were not intended by the Legislature the judgment would be only one directing the defendant to execute and deliver a muchilika in accordance with the patta as approved or amended by the judgment. There would really be no object in directing the defendant to 'accept' the patta if such acceptance means his signifying to the landlord his acceptance of the terms of the patta which had been tendered to him before suit. When the judgment itself declared that the terms of the patta are binding upon the tenant, why should the Legislature require him to signify his assent thereto. The argument apparently proceeds on the supposition that the patta contains the terms of a proposal made by the landlord, that there is a continuing offer by the landlord of those proposals both before and after judgment and that the tenant fulfils the obligation imposed on him by the judgment by signifying to the landlord his acceptance of those terms and executing a muchilika in accordance therewith. The word accept 'in Section 10 really means 'receive' which, it will be seen, is the word used in Section 8 when it refers to the grant by the landlord of 'such a patta as his tenant was entitled to receive.' The tenant of course cannot receive a patta after judgment, unless the landlord then tenders it to him, whether such patta be the one which was tendered to him before the suit but was refused or a patta as amended by the Collector. He then executes a muchilika in accordance therewith and thus exchange of pattas and muchilikas is ensured at the risk of the tenant forfeiting his holding if he does not receive the patta and execute the muchilika within ten days from date of judgment.
8. The very definition of 'muchilika,' viz., that it may be a counterpart of the patta or a simple engagement to hold according to the terms of the patta, at the option, not of the tenant, but of the landlord, is decisive of the question under consideration. If the landlord is not to stir in the matter after judgment had been given approving the patta as originally tendered or amending the same, how is the tenant to know whether the muchilika to be executed by him is to be a counter-part of the patta or simply an engagement to hold according to the terms of the patta. Even if there was nothing in the section about the acceptance of a patta subsequent to judgment and if the judgment is to be one simply directing the defendant to execute a muchilika in accordance with the patta as approved or amended by the Collector, I should be prepared to hold that the landlord should tender a draft muchilika to the tenant within a reasonable time before the expiration of ten days and that if he does not do so, the tenant will not forfeit his holding by reason of his not executing and delivering a muchilika.
9. Section 72 in my opinion strongly supports the above interpretation of Section 10. Its object is to enable the landlord to recover arrears of rent notwithstanding that the tenant has not accepted the patta subsequent to judgment, and executed a muchilika in accordance therewith and notwithstanding that he has thereby incurred a forfeiture of the holding. It declares that if the tenant refuses to execute the muchilika, the judgment shall be evidence of the amount of rent due by him and a certified copy of the judgment shall take effect as a muchilika executed by the tenant. Under Section 10 the landlord has to tender the patta and the draft muchilika,--whether it be at his option a
10. I would therefore unhesitatingly answer the question referred to the Full Bench in the negative.
Moore, J.
11. I concur. I have nothing to add to what has been set forth in the order of reference in Second Appeals Nos. 1095 and 1096 of 1900.