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 Ramanu-jam, J., reversed the decree relying on Prabhu v. Ramdeo, , and dismissed the suit. But he granted leave. In the Letters Patent Appeal Kaila-sam, J. took the view that the respondents were not entitled to the statutory protection, while Maharaian, 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 scone 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. Avvakannu, 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-
"(1) Subject to the next succeeding Sub-section, no cultivating tenant shall be evicted from his holding or any part thereof, by or at the instance of the landlord, whether in execution of a decree or order of a Court or otherwise."
Clauses (aa) to (d) in Sub-section (2) of the section deal with the grounds for eviction. Clause (aa) is not apposite in this case. Clause (b) makes negligence, which is destructive of or injurious to the land or any crop thereon, a ground for eviction. If the cultivating tenant has altogether ceased to cultivate the land, that will also furnish a basis for eviction. Clause (c) would enable a landlord to to evict a cultivating tenant, if he has used the land for any purpose not being agricultural or horticultural purpose. The next clause (d) deals with another ground for evicticn, namely, wilful denial of the title of the landlord to the land. These are the relevant provisions in the light of which we have to answer the question set out at the outset.
3. It is noteworthy that the first part of the definition of 'cultivating tenant' envisages a tenancy agreement, express or implied. The agreement is sine qua non to bring about a tenancy. But, in order to make the tenant a cultivating tenant, a further reauisite is that he should carry on personal cultivation as defined, which we have adverted to. When such a tenancy agreement comes to an end by whatever means, then the statutory tenancy begins by virtue of the inclusive definition of thy term 'cultivating tenant'. Determination of a tenancy agree-ment necessarily means that the contractual relationship of landlord and tenant is brought to an end and, notwithstanding, only by reason of the fact that the cultivating tenant as defined in the first part of the definition continues in possession of the land, he is enabled to continue to have the status of a cultivating tenant. In other words, the effect of the inclusive definition is that it brings about a statu-tory tenancy for purposes of protection. To bring about that result, the precedents are that there should have been in the origin a tenancy agreement, express or implied, and under that agreement, to which the person is a party, he should carry on personal cultivation on the land. If these premises are granted, though the agreement of tenancy, express or implied, has terminated but the person mentioned in the first Part of he definition continues in possesion of the land, he will be a cultivating tenant. The first part of the definition does not specify as between whom and whom the tenancy agreement mentioned is contemplated. The lease may have been granted by the owner or a usufructuary mortgage or even a les-see of the land. But the person who carries on personal cultivation of the land, should derive his right under a tenancy agreement, express or implied, with a person entitled to enter into it who may be any one of those persons we have just now mentioned as instances. To attract the inclusive definition, the two requisites are determination of a tenancy agreement and the person, who was within the first part of the definition, continues in pos-session of the land. It those requisites are satisfied, the person continuing in possession of the land will be a cultivat-ing tenant. The inclusive definition does not visualise that, after the determination of tenancy if the person as defined in the first Dart of the definition continues in possession of the land, he would not be a cultivating tenant unless there is a contractual relationship, express or implied with his landlord. We say so because a landlord, as noticed supra, is defined not in terms of a person who let out the land but as a person entitled to evict the cultivating tenant. No contractual relationship is necessary or is implied for purposes of the definition. The grounds of eviction, which we enumerated above should be understood and related to a landlord as defined and not in terms of a landlord as contemplated by the Transfer of Property Act. Under the latter Act, a landlord necessarily implies contractual relationship and there should be a landlord as well as a tenant and, as between them, the basis of relationship should be the tenancy agreement. But that will be So only in respect of the first part of the definition of 'cultivating tenant'. When we take the inclusive definition, it deals with a case of a situation arising after determination of tenancy, so that the contractual relationship need not exist as the basis for entitling the landlord either to collect rent or evict. Reading the defini- tions of 'cultivating tenant' and 'landlord' it is further clear that, in order to be a cultivating tenant for an extended period the lessor need not necessarily have the capacity or right to confer it. All that is essential for the inclusive definition to apply is that in the origin of the tenancy it should have resulted from a tenancy agreement express or implied, and, for purposes of inclusive definition, it does not matter whether the original lessor is in the picture or not. The test to find out whether a person is a landlord is not that whether there is a direct agreement be- tween him and the tenant, but whether the person who claims to be the landlord is entitled to evict on the grounds men- tioned in the Act. It is in the light of this position, in our opinion, we have to appreciate the scope and effect of Sub-sec- tion (1) of Section 3. When it speaks of at the instance of his landlord', it means at the instance of the person entitled to evict the tenant. The word 'his' does net make any difference, for the person en- titled to evict him will be his landlord at any given time The same meaning to the 'landlord' has to be given in clauses (b), (c) and (d) as well of Sub-section (2) of Section 3.
4. On the construction we have thus placed, it will be obvious that, even though the usufructaary 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 defini-tion 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 Bala-krishna Ayyar, J., in Ramaswami Naidu v. Marudaiveera Moopan, 1959-1 Mad LJ 25. 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 de- finition. The reasoning of Balakrishna Ayyar, J. which Jagadisan, J. and Kaila-sam, J. accepted in ILR (1961) Mad 452, was this:
"A tenancy agreement means an agreement creating a tenancy and when we speak of a tenancy we normally understand that there is on the one side a landlord and, on the other side, a tenant or lessee. In relation to sub-lessee we do not usually use the term tenancy agreement; instead we speak of the assignees of a lease. It will also be appreciated that if the contention of Mr. Krishna-swami Iyer were right, it would be possible for a lessee to create rights larger than he himself has and normally a construction which produce such a result should not be accepted..... the expression 'heirs, legal representatives and assignees' is a very familiar one. When, therefore, the Legislature said that the 'heirs of such person' shall be deemed to be tenant but did not, at the same time, include 'his legal representatives or assignees' in that category the inference must be that it did not want to confer the benefit of the Act on the legal representatives or assignees of the original lessee. Otherwise, it will be hard to explain the omission of the words 'legal representatives and assignees'."
So far as the first part of the learned Judge's reasoning is concerned, we are in agreement because a tenancy necessarily implies a landlord on the one hand and a tenant on the other. But equally to a sub-lessee the protection is traced to the statute. If the sub-lessee continues in possession but the tenancy agreement originally entered into had not terminated, then the inclusive definition may not apply and, therefore, the sub-lessee may not be entitled to protection. If, on the other hand, by the time, the sub-lessee claims protection under the Act the tenancy agreement with his lessor had terminated, then it will be a different matter to which the inclusive definition will have application. Also, the observation of the learned Judge that the lessor cannot confer a higher title than he himself possessed misses the fact, if we may say so with respect, that the conferment of protection is not by any person under a contract but by force of the statutory provision. The principle that no man can confer upon another a title or right higher than what, he himself possessed, will, therefore, have no validity in the application of the inclusive definition of 'cultivating tenant'.
5. For the appellant it was contended that, when by Amending Act IX of 1969 only a sub-tenant was bought within the vortex of the inclusive defini-tion of 'cultivating tenant', it did not do so in respect of a tenant or usufructuary mortgagee. But on principle, as we consider, the position of a usufructuary mortgagee is not different from that of a lessee who sub-lets, because in either case the tenancy results from a valid agreement and after its termination the tenant continuing in possession become, entitled to the statutory protection.
6. In , which was concerned with Rajasthan Tenancy
Act, especially Sections 15, 161, 5 (43) and 5 (44), it was held that the persons inducted into the agricultural land as tenants by the usufructuary mortgages and who had become entitled to rights of Khatedar tenants by virtue of Section 15 could not be elected by the mortgagor on ground that mortgage of the land had been redeemed. Rights of tenants inducted by mortgagee in possession under the provisions of the Transfer of Property Act may conceivably be improved by statutory provisions which may meanwhile come into operation, Ramanuiam. J., in the second appeal, has placed reliance on this decision for his view. But we would prefer to rest our view on the construc-tion that we have been inclined to make on the statutory provisions themselves in the Tamil Nadu Cultivating Tenants Protection Act, 1955.
7. Counsel for the appellant referred to Sachalmal Perasram v. Ratan-bai, , which we do not think in any way affects the view that we have taken as to the effect of the related statutory provisions in the Act. The Letters Patent Appeal fails and it is dismissed. No costs.
8. Maharaian, J., in his opinion, has suggested that the matter will have to go back to the Revenue Divisional Officer. But the suit out of which the appeal arises was one- simpliciter for recovery of possession and mesne profits and not for eviction on any other grounds available to the plaintiff under the Tamil Nadu Cultivating Tenants Protection Act. There is, therefore, no Point in forwarding the plaint to the Revenue Divisional Officer functioning under the Act. If the plaintiff wants to evict the defendants, he can always, do so on grounds open to him in appropriate proceedings.