Plaintiff Srimadam sought declaration that a well and threshing floor belonged to it and injunction against defendant using well water. Defendant claimed cultivating tenancy. Held: an advocate cannot be a cultivating tenant; lease agreement void; second appeal allowed and trial court decree restored.
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S.A.(MD)No.168 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved On Judgment Pronounced On 28.10.2024 02.12.2024
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.168 of 2007
Sri Siddheswari Peedam, Courtallam, Represented by its Peedathipati. ...Appellant --Vs-Pon Durai Samy … Respondent
PRAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, against the Judgment and Decree passed in A.S.No.134 of 2005 dated 27.02.2006 on the file of the Learned Additional Sub Judge, Tenkasi, reversing the Judgement and Decree of the District Munsif Court, Sengottai, dated 14.10.2004 in O.S.No. 17 of 2002.
For Appellant : Mr.T.S.R.Venkatramana Senior Counsel for Mr.S.Prithviraj For Respondent : Mr.V.Meenakshi Sundaram for Mr.V.Chinnakaruppan *****
JUDGMENT
The second appeal is preferred by the plaintiff in the suit against the Judgment and Decree dated 27.02.2006 on the file of Additional Sub Court,
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Tenkasi in A.S.No.134 of 2005 reversing the Judgment and Decree dated 14.10.2004 passed in O.S.No.17 of 2002 on the file of District Munsif Court, Senkottai.
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had filed O.S.No.349 of 1999 on the file of Sub Court Tenkasi and had obtained interim injunction in I.A.No.1278 of 1999 against the plaintiff herein. The plaintiff Srimadam had filed written statement in the said suit by stating the true facts, thereafter the defendant felt based on the true facts the said suit would not be sustained and would be dismissed, hence left the suit without contesting and the said suit was dismissed for non-prosecution. Therefore, the defendant is hit by principles of estoppel and res-judicata. The defendant had encroached the 1st schedule property and from 08.03.2002 trying to use the Well water situated in the 1st schedule for agricultural activity carried in the 2nd schedule property. The defendant is capable of doing anything. Hence the suit is filed inter alia praying to declare the defendant is not having any right to the Well and Nerkalam situated in the 1st schedule property consequently restrain the defendant from using the Well water to irrigate the 2nd schedule property.
is against the provisions of code of civil procedure for not stating the nature of land and extent of land. The well is not situated in the 1st schedule of property
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and the major portion of the well is situated in S.No.1158 and a small portion is situated in S.No.1173. The defendant had taken on lease the 2nd schedule of property along with the 1st schedule property wherein Well situated in S.No.1158 and S.No.1173 for 20 Kottai paddy per pasali and 2nd schedule property for Rs. 800/- per year from February 1993 onwards. The then Madathipathi had received Rs.25,000/- for letting the schedule property for lease. The Hindu Undivided Family of the defendant family is in possession and enjoyment of the properties. But there was disagreement in the joint family wherein the plaintiff, his brother Pon Anbalagan, Pon Arivalagan had orally divided the joint family properties during January 2000 and the cultivating tenant rights of the suit properties were allotted to the Pon Arivalagan and it was agreed that the said Pon Arivalagan would pay the lease amount to the plaintiff. The said oral partition had come into force and hence from 1st week of January 2000 onwards the said Pon Arivalagan is in possession and enjoyment of the suit schedule properties. Hence the suit is filed in order to evict the said Pon Arivalagan illegally. Further the plaintiff is aware of the fact the land is in possession with Pon Arivalagan and hence the defendant is an unnecessary party. And the said Pon Arivalagan is the necessary party. This fact is intimated in the reply notice dated 07.06.2000. When the defendant had taken the lease, the defendant had taken the lease of land as well as Well situated in the said Survey numbers for the irrigation of the said land. When
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the Well was dug to irrigate the lands in S.No.1158 and 1173, then the usage of water to the lands cannot be estopped. And the water from the Well is essential for the irrigation of the land. The Well was desilted twice by the said Pon Arivalagan and he is using the water from the Well through oil motor from 1993 onwards. The plaintiff ought to explain how the estoppel and res-judicata would apply for non-prosecution of the earlier case. There is no cause of action, hence the suit ought to be dismissed.
was filed in individual capacity by the erstwhile Madathipathi and he died on 17.12.2002. Hence, the present suit cannot be conducted and continued by the present Madathipathi. The new Peedathipathi should be added in the suit. Since the same is not added, the suit is liable to be dismissed. The Peedathipathi has filed a reply on 27.11.2003, wherein it is stated after amendment of Order 8 Rule 9 C.P.C., which was deleted from the code, hence the additional written statement cannot be filed by the defendant. Further, the plaintiff is a Madam and not an individual party and the Madathipathi only administers the Madam. If the Madathipathi had attained mukthi, the next successor would continue the administration. Hence, the plaintiff as the new Madathipathi has right to conduct the suit.
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vii. To what other reliefs the plaintiff is entitled to?
On 09.12.2003 the following additional issues were framed:
Thereafter the 1st issue stated supra is modified and re-framed as under:
“Whether the defendant has any right to claim the 1st item and the well situated in the 1st item?”
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property belonged to the plaintiff and the defendant was permanently restrained from the suit property and also restrained from using the water from the Well and using Nerkalam situated in 1st schedule of property. Aggrieved over the same, the defendant had preferred the appeal suit and the same was allowed. Aggrieved over the same, the plaintiff had preferred the present Second Appeal.
substantial questions of law:
“i. Can respondent/defendant an Advocate, enter into a contract of tenancy and take on lease of property?
ii. Is not such an agreement is void under section 23 of the contract Act? iii. When the lease agreement itself is void can respondent/defendant claim that he had transferred an illegal contract to his brother and that too without proof or evidence?
iv. Whether the Appellate Court was right in dismissing the suit when, admittedly, respondent/defendant an Advocate cannot be a Tenant of another man's property contrary to Advocates Act and rules of Bar Council?”
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“2.(aa) -Cultivating tenant?-
(i) means of person who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement, express or implied; and
(ii) includes –
(a) any such person who continues in possession of the land after the determination of the tenancy agreement;
(b) the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land;
(c) a sub-tenant if he contributes his own physical labour or that of any member of his family in the cultivation of such land; or
(d) any such sub-tenant who continues in possession of the land notwithstanding that the person who sublet the land to such sub-tenant ceases to have the right to possession of such land; but
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(iii) does not include a mere intermediary or his heir;”
If a person ought to be termed as cultivating tenant, the said person ought to contribute his physical labour. The advocate profession is a full-time job and he cannot contribute his physical labour. Infact the Learned Senior Counsel appearing for the plaintiff and the Learned Counsel appearing for the defendant /advocate submitted that the advocate cannot contribute physical labour. And an advocate cannot be a cultivating tenant based on the definition of under the aforesaid Act. Therefore, this Court is of the considered opinion that an advocate who is carrying on his profession as advocate cannot claim the rights of “cultivating tenant”. Either he can be an advocate or he can be a cultivating tenant.
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07.06.2000 and the same is admitted by the PW1 in his deposition. But the Learned Senior Counsel appearing for the plaintiff submitted that the said Pon Arivalagan also cannot be considered as cultivating tenant since he was elected as Panchayat President. This Court considered the rival submissions. Even though the defendant counsel had submitted the brother as cultivating tenant, as on date the brother’s name was not entered in the revenue records as cultivating tenant. The Learned Counsel submitted that a petition was filed to this effect but the same is still pending. It is seen the oral partition is in the year 2000 but till now the brother’s name is not entered in the revenue records. Further as rightly pointed out by the plaintiff counsel the defendant had filed first appeal in A.S.No.134 of 2005 and not his brother Pon Arivalagan. Even though the plaintiff had filed the suit by arraying the advocate as defendant, at least at appellant stage the defendant ought to have allowed the brother to file the first appeal. But the defendant / advocate had filed the appeal in his name only. The defendant on one hand states that the cultivating tenancy rights were transferred to his brother through oral partition in the year 2000, but had filed first appeal in the year 2005 in his name and not in his brother’s name, thereby taken inconsistent plea. The defendant had not taken any steps to substantiate the claim that his brother is cultivating tenant. Based on the inconsistent stand, the plaintiff cannot be expected to file a suit in the name of Pon Arivalagan. Therefore, the contention that the defendant brother Pon
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Arivalagan was the cultivating tenant cannot be accepted. By filing appeal in his name and not in his brother’s name the action of the defendant would prove that still the defendant is the cultivating tenant. Therefore, the first substantial question of law “whether an advocate by profession can take agricultural land for lease and be cultivating tenant” is answered in favour of the plaintiff and against the defendant.
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lease, put their physical labour, from the produce grown in the land the lease amount is paid. In short the cultivating tenant ought to be an agriculturist/farmer. Then the next question would be whether agriculture activity is a profession. Traditionally the produce of paddy, plantain, cereals alone was considered as agriculture activities, hence generally the agriculture activity are not considered as profession. But of late agriculture and allied activities are brought under the broad spectrum of agriculture activities, wherein horticulture, animal husbandry etc. are considered as agriculture. Infact Bachelor Degree courses are offered in Agriculture, Forestry, Animal Husbandry, Genetic Plant Breeding, Soil and Water management etc. in colleges. Further Master Degrees, Ph.D. courses are offered and Agriculture Universities are established. Now based on the courses offered professionally qualified people are available and technological advancements are available which is responsible for new reforms and innovations in the field of agriculture. In the light of the above developments this Court is of the considered opinion now the agriculture activities ought to be considered as profession.
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“Section-VII-Section on other Employments
47. An Advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that, in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession.
48. An Advocate may be Director or Chairman of the Board of Directors of a company with or without any ordinary sitting fee, provided none of his duties are of an executive character. An Advocate shall not be a Managing Director or a Secretary of any company.
49. An Advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an Advocate so long as he continues in such employment.
[* * *] [[Para 2 and 3 deleted by Resolution dated 22.6.2001. Prior to their deletion, Para 2 and 3 read as under:-"Nothing in his rule shall apply to a Law Officer of the Central Government of a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under section 28(2)(d) read with section 24(1)(e) of the Act despite his being a full time salaried employee. Law Officer for the purpose of this rule means a person who is so designated by the terms appointment and who, by the said terms, is required to act and/or plead in Courts on behalf of his employer." ]]
50. An Advocate who has inherited, or succeeded by survivorship to, a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by
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thereof.
will, provided he does not personally participate in the management thereof.
51. An Advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and, subject to the rules against advertising and full-time employment, engage in broadcasting journalism, lecturing and teaching subjects, both legal and non-legal.
52. Nothing in these rules shall prevent an Advocate from accepting, after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council of India from time to time.”
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“23. What considerations and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless—
it is forbidden by law; or
is of such a nature that if permitted, it would defeat the provisions of any law; or
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is fraudulent ; or
involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.”
The contention of the Learned Senior Counsel is that the Bar Council of India Rules bars the advocate from doing any other job and profession, hence the contract is forbidden under section 23 of the Contract Act. As stated supra the Rules is not forbidding but bars to take up full time job / profession but allows to be dormant / sleeping partner. This Court has already held that the cultivating tenant is full time job, therefore as per BCI Rules it bars to be a cultivating tenant. Consequently the cultivating agreement entered in the year 1993 in the name of the defendant while he is an advocate is against section 23 of Indian Contract Act. Therefore, the second substantial question of law is held in favour of the plaintiff and against defendant.
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section 23 of Indian Contract Act, then the transfer of such illegal contract in the name of the defendant brother Pon Arivalagan is void. The third substantial question of law is held in favour of the plaintiff and against the defendant.
02.12.2024
Index : Yes / No NCC : Yes / No Tmg
TO:
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S.SRIMATHY, J.
Tmg
Judgment made in S.A.(MD).No.168 of 2007
Dated: 02.12.2024
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3 issues framed by the court
Whether an advocate by profession can take agricultural land on lease and claim to be a cultivating tenant under the Tamil Nadu Cultivating Tenants Protection Act, 1955.
Whether the lease agreement entered by an advocate is void under section 23 of the Indian Contract Act as being forbidden by law.
Whether the appellate court was right in dismissing the suit when an advocate cannot be a cultivating tenant.
4 provisions across 4 enactments
Sri Siddheswari Peedam, Courtallam, represented by its Peedathipati
Pon Durai Samy
S.Srimathy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
