Bhavadesan Nambudiripad vs Narayanan Nambudiripad

Kuppuswami Ayyar, J.—These appeals arise out of a suit filed by a landlord for ejecting his tenant who was holding the properties on

kanom tenure. Under the terms of the Malabar Tenancy Act, the kanom tenant filed a petition for a renewal being granted in respect of the kanom

as it was found that the jenmi did not bona fide retire the land for his cultivation. The suit was O.S. No. 98 of 1941 on the file of the District Munsif

on Walluvanad, and I.A. No. 2146 of 1941 was the petition filed by the tenant praying for the execution of a renewal deed in respect of the

kanom. A Commissioner was appointed to ascertain the renewal fee payable by the tenant and he submitted a report fixing it. There was no

objection to the amount fixed by him and on the basis of his report the District Munsif passed an order calling upon the tenant to pay the renewal

fee with interest thereon at twelve per cent. from 1st December 1930, the date on which the Malabar Tenancy Act came into force, and he also

ordered that the renewal will be for a period of twelve years from 1st December 1930. The amount due as arrears of rent in respect of the kanom

was also ascertained and the same also was directed to be deposited along with the renewal fee and the interest thereon. Though he objected to

pay the amounts fixed as interest on the renewal fee from 1st December 1930 and also the price of paddy fixed by the Court for arriving at the

amount due as arrears of michavaram, he deposited the amount under protest and thereupon the District Munsif dismissed the suit holding that by

reason of his order directing the grant of a renewal the jenmi will not be entitled to a decree in eviction. As the amount payable by way of

michavaram and renewal fee together with interest thereon had been deposited, he had no other course but to dismiss the suit; but he directed the

tenant to pay the costs of the suit. The tenant thereupon filed two appeals, A. S. Nos. 107 and 117 of 1942 on the file of the Subordinate Judge''s

Court of Ottapalam. One was against the order in I.A. No. 2146 of 1941 and the other against the decree in O.S. No. 98 of 1941. With regard to

the appeal against the order on the interlocutory application the main objection that appears to have been pressed was that he was not liable to pay

interest on the renewal fee from 1st December 1930. In the other appeal he pleaded discharge of the rent and also pleaded that, the price of

paddy was incorrectly fixed. The learned Subordinate Judge found that the price of paddy fixed by the first Court was incorrect as it was not the

gazette rate but the market rate and he directed it to be fixed at the gazette rate. As the modification in the price of the paddy would alter the

amount of michavaram payable by the tenant the Subordinate Judge allowed both the appeals and remanded the petition and suit for passing

orders in the light of the price fixed by him with regard to the paddy rent payable. It is as against these orders the jenmi has filed A.A.O. Nos. 396

and 397 of 1943. The tenant has also filed appeals against the order refusing to allow his contention that interest was not payable by him on the

renewal fees from 1st December 1930 and also complaining that he was entitled to have a renewal for twelve years from the date of the document

and not merely from 1st December 1930, as was found by the first Court, though he did not challenge the correctness of this in the appeal by him

against the order on I.A. No. 2146 of 1941. The two appeals filed by him are C. M. A. Nos. 260 and 261 of 1943.

It is contended for the jenmi that no appeal lay against the order on the interlocutory application, I.A. No. 2146 of 1941, in view of the fact that

the defendant had deposited the amount though under protest and that it was not open to him to go behind the order on that application. But then

the Malabar Tenancy Act provides for an appeal against an order passed u/s 25. u/s 25 of that Act, if the amount fixed by the Court is deposited

in an application for the grant of a renewal of a lease, the Court is entitled to pass an order directing the execution of a renewal deed; but then if the

order directs the execution of a renewal deed by reason of the fact that a particular amount directed by the Court had been deposited and if he is

aggrieved by that order in pursuance of which he had to deposit that amount, he will be entitled to file an appeal and that appeal will be an appeal

against an order passed u/s 25. Consequently, it has to be held that the appeal by the tenant is maintainable.

The only other questions for consideration are : (1) whether the tenant is bound to pay interest from 1st December 1930 on the renewal fee

payable by him, and 12) whether the renewal is to take effect from 1st December 1930 or from the date of the document. In a later decision of this

Court reported in Bhavadasan Nambidiripad v. Narayanan NairA.I.R. 1943 Mad. 550 it has been held that the renewal takes its effect from the

date of the document and not from 1st December 1930 and as a sequel to this it was held by this Court in S. A. No. 1034 of 1942 on 1st April

1943 later in date to the above-mentioned decision that interest is payable only from the date of the document and not from 1st December 1930.

In the light of both these decisions it has to be held that no interest is payable from 1st December 1930 and as the amount has already been paid

before the document was executed no interest has to be collected from the tenant. It has also to be found that the renewal deed to be executed will

be a renewal of the lease for twelve years from the date on which the document is executed.

It is true that no objection as regards the period for which the renewal deed is to be executed was taken in the lower appellate Court. The

objection is taken in second appeal and I permit it in view of the fact that it was only the decision of this Court which was subsequent to the filing of

the appeal that necessitated the raising of this objection and also in view of the fact that the renewal deed has not been executed and is yet to be

executed. In the result the District Munsif of Walluvanad will execute a renewal deed for twelve years from the date of the order directing the

execution of the renewal deed. The amount already deposited by the tenant as interest on the renewal fee will be refunded to him. With regard to

the suit the District Munsif will have to pass a decree in terms of the directions in the decree of the lower appellate Court which has not been upset

except in respect of the two points mentioned above. As regards the costs of these appeals I direct each party to bear his own costs as it is in view

of a later decision that the tenant had been permitted to raise an objection which otherwise he would not be entitled to raise.