Effect of avoidance from the date of transaction.

V. RAMASWAMI

Under a registered deed dated 27-12-1971, the fourth respondent, father of the 5th respondent, executed a lease deed for a period of five years in respect of his minor son 5th respondent's separate property in favour of the appellant herein, on the date when the lease deed was executed, the fifth respondent was a minor, his date of birth being 27-9-1957. Claiming to be a cultivating tenant by virtue of the lease deed executed by the 4th respondent, the appellant filed an application before the Tahsildar, the 3rd respondent, under the provisions of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act (Act 10 of 1969), praying to register him as a tenant in the tenancy records as per the provisions of the Act. The 5th respondent contested the said proceeding on the ground that the lands are his properties, that his father had no manner of right or title to deal with the same and lease the property contrary to the provisions of S.8 of the Hindu Minority and Guardianship Act (XXXII of 1956), that he had no knowledge of the same, that he avoided the lease executed by his father on 15-9-1978 and that, therefore, the appellant could not claim any right under the Act. Though there was some dispute as to whether the land belonged to the 5th respondent or not, all the authorities have held that it belonged to the 5th respondent and there is no dispute about the same in this appeal. On the question whether there was any valid tenancy, the 3rd respondent Tahsildar, held that in view of Sec.8(2) (b) of the Hindu Minority and Guardianship Act, and the lease having been avoided by the minor after he attained the age of majority, there was no valid lease and the appellant could not claim the status of a cultivating tenant and accordingly he dismissed the petition.

2. On appeal, the Revenue Divisional Officer, Tirukoilur, the second respondent herein, however, held that the appellant was a contractual tenant and that, therefore, he is entitled to be registered as a cultivating tenant.

3. The 5th respondent preferred a revision to the first respondent, the District Revenue Officer, South Arcot at Cuddalore, who set aside the order of the Appellate Authority, and restored the order of the Tahsildar, holding that the appellant is not a cultivating tenant. The writ petition filed by the appellant, having been dismissed, the present appeal has been filed against the order in W. P. No. 3143 of 1978.

4. The learned counsel for the appellant contended that on 27-12-1971, when the lease deed was executed and he was given possession of the land by the father of the minor, there was a valid and enforceable lease and even if the 5th defendant had any right for avoiding the sale after he attained the age of majority, the lease being initially valid, he is entitled to the benefits of a cultivating tenant. In support of this contention he relied on two decisions, one Full Bench of this court, reported in Chandra Sekaran v. Kunju Vanniar (1976) 2 Mad LJ 243: 1975 AIR(Mad) 227) and another by the Supreme Court, reported in G. Ponniah Thevar v. Nallayam Perumal Pillai. In the Supreme Court case, a lease deed was executed by a life estate holder. On the cessation of the life estate the successor claimed that the lease executed was not binding on him and that so far as he is concerned, the tenant could not claim the benefits of the Cultivating Tenants Protection Act. The Supreme Court held that the life estate holder is entitled to create a tenancy and by virtue of the provisions of the Act, such a tenant created by her could legally extend beyond her lifetime and bind the successor. The ratio of the Supreme Court judgment thus is that there could be no doubt that a life estate holder is entitled to lease the property in her own right. He does not deal with it, as the property of the successor. Though the lease itself may be valid only during the lifetime of the life estate holder, the authority to lease could not be questioned.

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