Chenkuniyrath Kannu's daughter Kalathil Madhavi vs Uppungal Makkunny's son Krishnan and Others

Raghava Rao, J.—In this second appeal and civil miscellaneous second appeal, it is common ground that if the one is allowed, the other also

must be allowed, and that if the one is dismissed, the other also must be dismissed. The question argued is whether in a suit for eviction u/s 33,

Malabar Tenancy Act, the tenant who prior thereto made a usufructuary mortgage of his holding in favour of another person and got back

possession from the mortgage as lessee is entitled to plead his continuous occupation of the homestead for ten years as entitling him to offer to

purchase the rights of the landlord. The Courts below have held that he is; Mr. Kuttikrishna Menon''s argument is that he is not. The argument is

put this way:

Suppose, the tenant had made a mortgage and not got She lease back; he would not have been entitled to offer to purchase the landlord''s right.

His situation does not stand improved by the lease back. Of course, bad the tenant made a simple, and not a usufructuary mortgage, he would

have been entitled to offer to purchase the landlord''s right. The test of the matter Is continuous occupation by the tenant as ''such, quoad the

landlord. The occupation in question is really referable to the lease back from the mortgagee and not to the original tenancy between the plaintiff

and the defendant.

The fallasy of the argument is that admittedly the tenancy has not ceased by the subsequent transaction, which in their legal efficacy can only

operate as derivative transaction on the basis of the subsistence of the original tenancy. It is urged for the appellant that if the usufructuary

mortgagee sued the defendant, the defen-dant would be entitled to buy up the rights of the mortgagee as landlord, as held by this Court in Ayimbati

Thottathil Narikkot Cheriya Krishnan Nayar Vs. Puthan Peetikayil Charichil Pallikkal Moideen and Others, and that there cannot at the same time

be a similar right on the part of the defendant against the plaintiff. The two rights are capable of concurrent existence and there is no anomaly much

less legal impossibility.; about such coexistence. As the learned Subordinate Judge has put it,

the respondent has been in continuous occupation of the property for ten years prior to the date of the suit and during the whole of that period, he

has retained the position of a tenant under the plaintiff or her predeoessor-in-title."" -This second appeal and civil miscellaneous second appeal are

therefore dismissed.

The respondent in second appeal No. 580 of 1947 will get his costa.